King v. Old Republic Ins. Co.

• Decision Date: 07 September 2016
• Docket Number: No. 2016–CA–0170.,2016–CA–0170.
• Citation: King v. Old Republic Ins. Co., 200 So.3d 989 (La. App. 2016)
• Parties: Lindsey KING, Individually and On Behalf of Her Deceased Minor Child, Peyton Wilt v. OLD REPUBLIC INSURANCE COMPANY, Christopher P. Brupbacher, Dofin Fruits d/b/a Have Gyro Will Travel, and the Succession of Darren Joseph Mahler.
• Court: Court of Appeal of Louisiana — District of US

200 So.3d 989

Lindsey KING, Individually and On Behalf of Her Deceased Minor Child, Peyton Wilt

v.OLD REPUBLIC INSURANCE COMPANY, Christopher P. Brupbacher, Dofin Fruits d/b/a Have Gyro Will Travel, and the Succession of Darren Joseph Mahler.

No. 2016–CA–0170.

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 7, 2016.

Joseph S. Piacun, Thomas A. Gennusa, II, Reid S. Uzee, Gennusa Piacun & Ruli, Metairie, LA, for Plaintiff/Appellant.

Darrell K. Cherry, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Defendant/Appellee.

(Court composed of Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO, Judge SANDRA CABRINA JENKINS ).

JOY COSSICH LOBRANO, Judge.

This case involves an insurance coverage dispute arising from a wrongful death and products liability claim.The plaintiff/appellant, Lindsey King(“King”), individually and on behalf of her deceased minor child Peyton Wilt(“Wilt”), appeals the June 26, 2015 judgment of the district court granting summary judgment in favor of defendant/appellee, Old Republic Insurance Company(“Old Republic”), and dismissing all claims against Old Republic with prejudice.

On September 21, 2014, Wilt was killed in an aircraft crash, along with Darren Mahler(“Mahler”).Mahler was the pilot of a gyrocopter, an experimental amateur-built aircraft, in which Wilt was Mahler's passenger at the time of the crash.Prior to the crash, Mahler purchased the gyrocopter from Christopher Brupbacher(“Brupbacher”), who also built the gyrocopter.The gyrocopter was registered with the Federal Aviation Association(“FAA”) with an experimental category airworthiness certificate.

On March 16, 2015, King filed a petition for damages naming as defendants Old Republic, Mahler's estate, Brupbacher, and Dofin Fritts d/b/a Have Gyro Will Travel (“Fritts”).In her petition, King alleged that Fritts inspected and provided training regarding the gyrocopter prior to its sale to Mahler.King brought claims against Brupbacher and Fritts under the Louisiana Products Liability Act, as set forth in La.R.S. 9:2800.51.King also alleged that Old Republic issued to Mahler an aviation insurance policy (the “policy”), which King alleged provided coverage for bodily injury and property damage resulting from the crash.

Old Republic filed a motion for summary judgment on May 8, 2015, contending that the policy it issued to Mahler provided no coverage for the flight or crash of the gyrocopter or for the death of Mahler's passenger, Wilt.Old Republic argued that its policy covered only a 1973 PiperPA–28–140 fixed wing aircraft (the “Piper”), which was listed in the declarations section of the policy and was not involved in the crash.However, Mahler did not seek to add the gyrocopter as a covered aircraft under the policy.

King opposed summary judgment, arguing that the policy provided coverage for “any aircraft” that is “used by the named insured [Mahler]” which “is not an aircraft described in Item 5 of the Declarations.”King pointed to the Expanded Amendatory Endorsement (the “endorsement”) attached to the policy which reads, in pertinent part, as follows:

6.THE LIABILITY COVERAGES AFFORDED BY THIS POLICY ARE EXTENDED TO APPLY TO THE USE, BY OR ON BEHALF OF THE NAMED INSURED, OF ANY AIRCRAFT WHICH:

(a) IS NOT OWNED IN WHOLE OR IN PART BY, OR FURNISHED FOR REGULAR USE TO THE NAMED INSURED;

b) IS NOT AN AIRCRAFT DESCRIBED IN ITEM 5 OF THE DECLARATIONS;

(c) HAS A STANDARD AIRWORTHINESS CERTIFICATE;

(d)HAS A CERTIFICATED GROSS TAKE OFF WEIGHT OF NO MORE THAN12,500 POUNDS;

(e) HAS A MAXIMUM OF SEVEN SEATS, INCLUDING CREW.

King asserted that the endorsement was drafted without the conjunctive “and” between elements (a) through (e).Thus, King argued, the absence of an “and” renders each element independent and disjunctive from the other, and there is no express requirement that all elements must be satisfied for an extension of liability coverage under the policy.According to King's argument, each of elements (a) through (e) should be read as though an “or” followed each semicolon.King contended, in the alternative, that the endorsement is ambiguous, susceptible of multiple interpretations, and should be construed in favor of coverage.King further argued that Mahler believed there was coverage for the gyrocopter, and Mahler's wife attested to her understanding of this belief in an affidavit, which was introduced by King in opposition to summary judgment.

In its reply to King's opposition, Old Republic argued that King's interpretation of the endorsement would lead to absurd results, in that such an interpretation would render the policy as providing coverage for any aircraft that Mahler chose to use.Old Republic also contended that the affidavit of Mahler's wife was inadmissible as hearsay and as parol evidence that does not change the terms of the policy.

On September 26, 2015, the district court rendered judgment, finding that Old Republic was entitled to judgment as a matter of law and dismissing all claims brought by King against Old Republic with prejudice.

King initially applied for supervisory writs, which this Court granted for the purpose of remanding to the district court to consider King's notice of intent to apply for supervisory writs as a petition for appeal.This appeal followed.

King argues on appeal that the district court erred as a matter of law in finding no coverage for the gyrocopter.King also contends that the policy is vague, ambiguous, and susceptible of multiple reasonable interpretations, and should be construed in favor of coverage.

“A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.”Samaha v. Rau, 2007–1726, pp. 3–4(La.2/26/08), 977 So.2d 880, 882–83.“A dispute as to whether, as a matter of law, an insurance policy provides or precludes coverage to a party usually involves a legal question which can be resolved in the framework of a motion for summary judgment.”Batiste v. City of New Orleans, 2011–1168, p. 3(La.App. 4 Cir.2/29/12), 85 So.3d 800, 802(citingDore v. Brignac, 2000–1719, p. 3(La.App. 4 Cir.6/20/01), 791 So.2d 736, 738.)“When determining whether or not a policy affords coverage for an incident, it is the burden of the insured to prove the incident falls within the policy's terms.”Doerr v. Mobil Oil Corp., 2000–0947, p. 5(La.12/19/00), 774 So.2d 119, 124, modified on other grounds on reh'g, 2000–0947 (La.3/16/01), 782 So.2d 573.“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, p. 2(La.4/11/94), 634 So.2d 1180, 1183(citingWesterfield v. LaFleur,493 So.2d 600, 605(La.1986) ).

In Bonin v. Westport Ins. Corp., 2005–0886(La.5/17/06), 930 So.2d 906, the Louisiana

Supreme Court summarized the principles for construing insurance policies as follows:

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code.Cadwallader v. Allstate Ins. Co., 02–1637, p. 3(La.6/27/03), 848 So.2d 577, 580;Louisiana Ins. Guar. Ass'n v. Interstate Fire & Casualty Co., 93–0911, p. 5(La.1/14/94), 630 So.2d 759, 763.The judicial responsibility in interpreting insurance contracts is to determine the parties' common intent.La.C.C. art.2045;Louisiana Ins. Guar. Ass'n, 93–0911at p. 5, 630 So.2d at 763;Garcia v. St. Bernard Parish School Board,576 So.2d 975, 976(La.1991).Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning.La.C.C. art.2047;Cadwallader, 02–1637at p. 3, 848 So.2d at 580;Carbon v. Allstate Ins. Co., 97–3085, p. 4(La.10/20/98), 719 So.2d 437, 439.

An insurance policy should not be interpreted in an unreasonable or a 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.Carrier v. Reliance Ins. Co., 99–2573, pp. 11–12(La.4/11/00), 759 So.2d 37, 43(quotingLouisiana Ins. Guar. Ass'n, 93–0911at p. 5, 630 So.2d at 763 ).Unless a policy conflicts with statutory provisions or public policy, it may limit an insurer's liability and impose and enforce reasonable conditions upon the policy obligations the insurer contractually assumes.Carbon, 97–3085at p. 5, 719 So.2d at 440;Louisiana Ins. Guar. Ass'n, 93–0911at p. 6, 630 So.2d at 763.

If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer and in favor of coverage.Cadwallader, 02–1637at p. 3, 848 So.2d at 580;Carrier, 99–2573at p. 12, 759 So.2d at 43–44.Under this rule of strict construction, equivocal provisions seeking to narrow an insurer's obligation are strictly construed against the insurer.Louisiana Ins. Guar. Ass'n, 93–0911at p. 6, 630 So.2d at 764;Garcia,576 So.2d at 976.That strict construction principle, however, is subject to exceptions.Cadwallader, 02–1637at p. 3, 848 So.2d at 580;Carrier, 99–2573at p. 12, 759 So.2d at 43–44.One of these exceptions is that the strict construction rule applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations.Cadwallader, 02–637at p. 3, 848 So.2d at 580;Carrier, 99–2573at p. 12, 759 So.2d at 43–44.For the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative

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