Gutierrez v. State Farm Fire & Cas. Ins. Co.

• Decision Date: 30 October 2013
• Docket Number: No. 13–CA–341.,13–CA–341.
• Parties: Dylan Carey GUTIERREZ, Individually and as the Survivor of his Mother, Barbara Viola Fouchi v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY.
• Court: Court of Appeal of Louisiana — District of US

128 So.3d 509

Dylan Carey GUTIERREZ, Individually and as the Survivor of his Mother, Barbara Viola Fouchi

v.STATE FARM FIRE AND CASUALTY INSURANCE COMPANY.

No. 13–CA–341.

Court of Appeal of Louisiana, Fifth Circuit.

Oct. 30, 2013.

J. Patrick Connick, Marrero, LA, for Plaintiff/Appellant, Dylan Carey Gutierrez, Individually and as the Survivor of his Mother, Barbara Viola Fouchi.

John E. McAuliffe, Jr., Metairie, LA, Counsel for Defendant/Appellee, State Farm Fire and Casualty Company.

Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.

SUSAN M. CHEHARDY, Chief Judge.

This is a wrongful death and survival action that was dismissed by summary judgment. The plaintiff appeals. We vacate and remand.

FACTS AND PROCEDURAL HISTORY

Dylan Carey Gutierrez is the son of Barbara Viola Fouchi from her first marriage.¹ On February 20, 2009, Barbara Fouchi was shot and killed by her husband, Dana Ray Fouchi. Dana Fouchi then shot and killed himself. These events occurred in Dana Fouchi's home at 2504 Danny Park in Metairie, Louisiana.

Dylan Gutierrez filed suit against State Farm Fire and Casualty Company, which provided homeowners insurance to Dana Fouchi. Gutierrez sought recovery under the policy's bodily injury liability coverage. He alleged that due to Dana Fouchi's mental state at the time Barbara Fouchi was killed, Dana Fouchi “could not and did not” have a malicious intent to inflict injury on her.

In its answer, State Farm raised coverage defenses. State Farm asserted that the claims made in this suit are not covered due to the exclusions from liability for bodily injury or property damage which is either expected or intended by the insured, or which is the result of willful and malicious acts of the insured. In addition, State Farm asserted the liability exclusion for bodily injury to any insured, as defined in the policy.²

State Farm filed a motion for summary judgment on the grounds that no coverage was afforded for the intentional acts and/or willful and malicious acts of Dana Fouchi in murdering his wife. State Farm also claimed there was no coverage because at the time of her death, Barbara Fouchi was a resident of Dana Fouchi's household and, therefore, was an insured under the policy definition, and the policy excludes liability coverage for an insured.

In support of the motion for summary judgment, State Farm included a copy of the insurance policy, as well as excerpts from the deposition of Dylan Gutierrez regarding the living arrangements of Barbara and Dana Fouchi. In the deposition, Gutierrez testified that his mother and Dana Fouchi had an unusual marital living arrangement, in which each of them had a home when they married, they kept their homes after the marriage, and they took turns staying at one place or the other. At the time she was killed, Barbara Fouchi had been staying at Dana Fouchi's home for at least 10 days preceding her death.

In opposition to the motion for summary judgment, Gutierrez argued that the intentional act exclusion does not apply because Dana Fouchi had mental illnesses that rendered him incapable of understanding or intending the consequences of his actions, or of acting in a willful or malicious manner. Gutierrez also argued that his mother was not a resident of Dana Fouchi's household when she was killed, because she had maintained a separate residence during most of the marriage, and she planned to leave Dana and end the marriage.

In support of his opposition, Gutierrez submitted an affidavit from Dr. Rafael Salcedo, a forensic psychologist, who stated,

It is my opinion that at the time of the murder-suicide, Dr. Fouchi was clearly experiencing a major depressive episode. Dr. Fouchi's history of manic episodes and depression in all likelihood significantly impaired Dr. Fouchi's judgment and ability to appreciate the impact and consequences of his actions at the time of the murder-suicide.³

Attached to the affidavit was a report in which Dr. Salcedo detailed the information he reviewed that led him to his conclusion, including a variety of documents and medical records relating to Dana Fouchi. Attached to Dr. Salcedo's report were the documents he used in preparing his opinion. He noted, “These records indicate that Dr. Dana Fouchi suffered from a long history of sexual addiction and sexual boundary disorders, as well as depression, posttraumatic stress disorder, and manic behaviors.” In addition, there were disciplinary reviews by the state board of medical examiners.

Gutierrez also attached excerpts from his deposition, in which he testified that his mother and Dana Fouchi, although married, did not live together and maintained separate homes. Gutierrez said that just prior to her death, his mother told him she intended to leave Dana, get a new residence, and work in California. Gutierrez further explained that when his mother was killed, she was only staying at Dana's residence temporarily until she could move into a new apartment. Also included in the attachments were copies of bills sent to Barbara at a different address than Dana Fouchi's home.

The trial court ruled in favor of State Farm and granted summary judgment on the basis of the intentional act exclusion.

Gutierrez has appealed. On appeal he asserts the trial court erred by improperly weighing and evaluating the credibility of Dr. Salcedo's expert opinion and disregarding his opinion regarding Dana Fouchi's ability to understand and intend his actions and their consequences. He further asserts the trial court erred by failing to recognize that genuine...