Donovan v. Nettles

• Decision Date: 10 February 1976
• Docket Number: No. 7266,7266
• Parties: Harold DONOVAN v. Leon NETTLES et al., Defendants-Appellants, Victor Lota et al., Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 433

327 So.2d 433

Harold DONOVAN v. Leon NETTLES et al., Defendants-Appellants Victor Lota et al., Appellees.

No. 7266.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 10, 1976.

Birdsall, Alvarez & Rodriguez, Lowell W. Davis, Jr., New Orleans, for plaintiff-appellee.

Bienvenu, Foster, Ryan & O'Bannon, H. F. Foster, III, New Orleans, for defendants-appellants (Leon Nettles and O. P. Gaudet, Jr.).

Drury, Lozes & Curry, James H. Drury and Bradford H. Walker, New Orleans, for defendants-appellants (Morris G. West and Leonard Ramon).

Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Edward P. Lobman and Jack M. Alltmont, New Orleans, for State Farm Fire & Cas. Co. (third-party defendant-appellee).

George J. Richaud, Metairie, for Liberty Mut. Fire Ins. Co. (third-party defendant-appellee).

Schumacher, McGlinchey, Stafford, Mintz & Hoffman, Donald R. Mintz and William F. Bologna, New Orleans, for Old Reliable Fire Ins. Co. (third-party defendant-appellee).

Before GULOTTA, SCHOTT and BEER, JJ.

SCHOTT, Judge.

Plaintiff brought suit against a number of his co-employees, including the four appellants alleging that he was injured while he was on the job with his employer under the direct supervision of the defendants, including appellants. He charged them with negligence in the performance of their duties as foremen or supervisors in charge of his work. The four appellants, Nettles, Gaudet, West and Ramon, brought third-party demands against appellees, which are insurers who had issued to each of appellants a homeowners policy which included liability insurance. In their third-party demand appellants prayed for judgments for the costs and attorneys' fees incurred by them in defending against the main demand as well as indemnification. Appellees denied coverage, and from summary judgments rendered in their favor dismissing the third-party demands appellants have taken this appeal.

Each policy of insurance contains the following exclusion from liability coverage:

'd. To bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to non-business pursuits;'

Each policy defines 'business' to mean:

'A trade, profession or occupation, including farming, and the use of any premises or portion of residence premises for any such purposes;'

The position of each of the appellants is identical except for Gaudet who, at the time of the accident, was on vacation, and who argues therefore that the allegations of the original petition to the effect that he was negligent in the performance of his duties are patently false.

Concerning all of appellees' obligations to defend their insureds, the following is applicable from American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253, 259 (1970):

'Generally the insurer's obligation to defend suits against the insured is broader than its liability for damage claims. And the insurer's duty to defend suits brought against its insured is determined by the allegations of the insured plaintiff's petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage.'

The questions are therefore whether there is coverage under the policies and whether the petition unambiguously excludes that coverage so as to relieve appellees of their obligations to defend under their policies.

Appellants apparently concede that if the exclusion clause quoted above stood alone or the definition of 'business' was simply 'a trade, business or occupation' there would be no coverage pursuant to such decisions as Pitre v. Pennsylvania Millers Mutual Insurance Co., 236 So.2d 920 (La.App.3rd Cir. 1970) and Berry v. Aetna Casualty & Surety Company, 221 So.2d 272 (La.App.2nd Cir. 1969). But appellants would distinguish the instant case from those cited because of the manner in which 'business' is defined in appellees' policies. They contend that the use of the conjunctive 'and' between the word 'farming' and the phrase 'the use of any premises . . . for any such purposes' restricts 'business' to those situations where the insured's occupation is performed on his premises. They reason that since the allegations of the petition are to the effect that the accident occurred on the job and not on any of the insured's premises the business...