Doe v. Breedlove

• Decision Date: 11 February 2005
• Docket Number: No. 2004 CA 0006.,2004 CA 0006.
• Citation: 906 So.2d 565
• Parties: Jane DOE v. Adam BREEDLOVE, Chad Griffin, Marvin Gahagan, Individually and on Behalf of His Son, Kramer v. Gahagan, R-D Yesterdays, Inc., Robert L. Walker and Debra Walker, and Their Insurers
• Court: Louisiana Supreme Court

906 So.2d 565

Jane DOE v. Adam BREEDLOVE, Chad Griffin, Marvin Gahagan, Individually and on Behalf of His Son, Kramer v. Gahagan, R-D Yesterdays, Inc., Robert L. Walker and Debra Walker, and Their Insurers

No. 2004 CA 0006.

Court of Appeal of Louisiana, First Circuit.

February 11, 2005.

COPYRIGHT MATERIAL OMITTED

Robert D. Hoover, Baton Rouge, Counsel for Plaintiff/Appellant Jane Doe.

Lance E. Harwell, Metairie, Counsel for Defendant/Appellee The Standard Fire Insurance Company.

Holly J. Quick, Baton Rouge, Counsel for Defendant/Appellee Louisiana Farm Bureau Casualty Insurance Company.

Henry Cole Gahagan, Jr., Natchitoches, Counsel for Defendant/Appellee Victor Kramer Gahagan.

Edwin Dunahoe, Natchitoches, Counsel for Defendant/Appellee Adam Breedlove and Chad Griffin.

Jill L. Craft, Baton Rouge, Counsel for Plaintiff/Appellant Jane Doe.

C.R. Whitehead, III, Natchitoches, Counsel for Defendant/Appellee Robert Walker, Debra Walker and R-D Yesterdays, Inc.

Before: GUIDRY, GAIDRY, and McCLENDON, JJ.

GAIDRY, J.

The plaintiff-appellant, Jane Doe¹, appeals an adverse summary judgment in favor of the defendant, The Standard Fire Insurance Company (Standard Fire), finding no coverage under its policy of liability insurance for her various claims asserted against its insured in this litigation. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 17, 2000, the plaintiff, Jane Doe, was a 22-year-old college student attending Northwestern State University in Natchitoches and also worked at a furniture store. That evening, she accompanied a male friend to a local bar. After consuming one mixed drink, she left that bar with a second mixed drink and went to another bar, Yesterday's. While there, she encountered Adam Breedlove, an acquaintance who worked at the same furniture store. In the course of a brief conversation on the dance floor, Mr. Breedlove allegedly asked the plaintiff what she was drinking, and she handed her drink to him to sample it. The plaintiff contends that Mr. Breedlove somehow surreptitiously placed Rohypnol² or a similar drug in her drink, although she admittedly has no direct evidence supporting that contention.

Upon leaving the bar around its closing time, another pair of friends drove the plaintiff to her residence. After changing into her bedclothes, the plaintiff telephoned the first friend with whom she had left her residence and invited him to watch a movie. Soon after, she became violently ill and vomited. After her friend assisted the plaintiff in getting to bed, he left, and she fell asleep. The plaintiff claims that she later woke up and discovered Mr. Breedlove on top of her, in the act of sexual intercourse, and two other unknown men standing near her bed. The other individuals were later identified as Chad Griffin and Victor Kramer Gahagan. The plaintiff described feeling completely numb, and eventually lost consciousness again. She also claims that upon regaining consciousness and getting out of bed, Mr. Breedlove grabbed her from behind and pushed her into her living room, where the other two individuals were seated. The three young men left shortly thereafter.

On April 17, 2001, the plaintiff filed a petition for damages, naming as defendants Mr. Breedlove, Mr. Griffin, Mr. Gahagan, Mr. Gahagan's father, the owners of Yesterday's, and the then unknown liability insurers of those parties.³ She alleged that Mr. Breedlove administered a drug to her which rendered her unconscious, which act was facilitated by Mr. Griffin and Mr. Gahagan, and that the three entered her residence without her consent. She further alleged that they then entered her bedroom and engaged in sexual relations with her without her consent, causing her personal injury through their "negligence and/or fault." She subsequently served an amended petition identifying the insurers of Mr. Breedlove and Mr. Griffin.⁴

The three alleged tortfeasors answered the petition, as amended, denying her allegations, and also affirmatively alleged her contributory negligence and fault, including, among other allegations, that the plaintiff acted "in an openly lewd, lascivious and solicitous manner" intended to encourage sexual advances. They further affirmatively alleged that the plaintiff invited Mr. Breedlove to her residence to engage in sexual relations with her. Mr. Breedlove and Mr. Gahagan also asserted reconventional demands against Ms. Doe for defamation. The two named insurers filed separate answers, denying both liability and coverage for their insureds' alleged acts.

The two named insurers filed separate motions for summary judgment, seeking their dismissal on the grounds that their policies did not afford coverage for the acts alleged in the plaintiff's petition. The plaintiff then served a second amended petition, alleging that the three tortfeasors were intoxicated at the time of the event, and that each was negligent in failing to obtain her consent before engaging in sexual relations with her. She further alleged that Mr. Griffin and Mr. Gahagan negligently assisted Mr. Breedlove in his nonconsensual sexual relations with her, and that the three "conspired to commit the aforementioned negligent and/or intentional acts upon [her]."

The trial court heard Standard Fire's motion for summary judgment on June 2, 2003, and rendered judgment in its favor. Its summary judgment was signed on June 19, 2003, dismissing the plaintiff's cause of action against Standard Fire.⁵ Ms. Doe now appeals, contending that the trial court erred in concluding that no genuine issue of material fact existed on the issue of lack of coverage by reason of the intentional character of Mr. Breedlove's alleged acts.

STANDARD OF REVIEW

The judgment from which this appeal is taken is a partial summary judgment. Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Motorola v. Associated Indemnity Corporation, 02-0716, p. 5 (La.App. 1st Cir.6/25/04), 878 So.2d 824, 828. We are authorized and, indeed, required to render a judgment "which is just, legal, and proper upon the record on appeal." La. C.C.P. art. 2164; Jackson National Life Insurance Company v. Kennedy-Fagan, 03-0054, p. 5 (La.App. 1st Cir.2/6/04), 873 So.2d 44, 48, writ denied, 04-0600 (La.4/23/04), 870 So.2d 307.

SUMMARY JUDGMENT

The summary judgment procedure is expressly favored in the law, and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A). Summary judgment is appropriate if the pleadings, depositions answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The mover has the burden of proof that he is entitled to summary judgment. However, if the mover will not bear the burden of proof at trial on the matter at issue, then he need only point out the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The nonmoving party must then produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2); Simmons v. Berry, 98-0660, p. 4 (La.App. 1st Cir.12/22/00), 779 So.2d 910, 914. In doing so, the nonmoving party may not rest on the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). Failing such proof, summary judgment is proper. Id.; La. C.C.P. art. 966(C)(2).

Interpretation of an insurance contract is usually a legal question which can be properly resolved in the framework of a motion for summary judgment. Madden v. Bourgeois, 95-2354, p. 3 (La.App. 1st Cir.6/28/96), 676 So.2d 790, 792. However, 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. Gaylord Chemical Corporation v. ProPump, Inc., 98-2367, pp. 3-4 (La.App. 1st Cir.2/18/00), 753 So.2d 349, 352.

PRINCIPLES OF INSURANCE POLICY INTERPRETATION

An insurance policy is a contract between the parties, and should be construed employing the general rules of interpretation of contracts. Blackburn v. National Union Fire Insurance Company of Pittsburgh, 00-2668, pp. 5-6 (La.4/3/01), 784 So.2d 637, 641. Words in an insurance policy must therefore be given their generally prevailing meaning, unless they have acquired a technical meaning, in which case the technical meaning applies. La. C.C. art.2047; Succession of Fannaly v. Lafayette Insurance Company, 01-1355, p. 3 (La.1/15/02), 805 So.2d 1134, 1137. An insurance policy is construed as a whole, and each provision in the policy must be interpreted in light of the other provisions. Id., 01-1355 at pp. 3-4, 805 So.2d at 1137. If an ambiguity remains after applying the general rules of contractual interpretation, the ambiguous policy provision is construed against the insurer who furnished the policy's text and in favor of the insured. Id., 01-1355, at p. 4, 805 So.2d at 1138.

An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Magnon v. Collins, 98-2822, p. 7 (La.7/7/99), 739 So.2d 191, 196. Likewise, a court should not strain to find ambiguity in a policy where none exists. Gaylord Chemical Corporation, 98-2367 at p. 4, 753 So.2d at 352. An insurer has 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,...