Lang v. Asten, Inc.

• Decision Date: 30 March 2005
• Docket Number: No. 2004-CA-1665.,2004-CA-1665.
• Citation: 900 So.2d 1031
• Parties: Dorothy LANG, Spouse of/and Stanley Lang, Erma Martin, Spouse of/and Burnia Martin, Mary Melancon, Individually and as Surviving Spouse of Roy Melancon, Elizabeth J. Penny, Spouse of/and Thomas D. Penny, Elizabeth Romano, Spouse of/and Russell Romano v. ASTEN, INC., Combustion Engineering, Inc., D.B. Riley, Inc., Eagle, Inc., Industrial Holdings Corporation, McCarty Corporation, Midland-Ross Corporation, Mt. Vernon Mills, Inc., Owens-Illinois, Inc., Scapa Dryers, Inc., Scapa Group, Ltd., et al.
• Court: Louisiana Supreme Court

900 So.2d 1031

Dorothy LANG, Spouse of/and Stanley Lang, Erma Martin, Spouse of/and Burnia Martin, Mary Melancon, Individually and as Surviving Spouse of Roy Melancon, Elizabeth J. Penny, Spouse of/and Thomas D. Penny, Elizabeth Romano, Spouse of/and Russell Romano v. ASTEN, INC., Combustion Engineering, Inc., D.B. Riley, Inc., Eagle, Inc., Industrial Holdings Corporation, McCarty Corporation, Midland-Ross Corporation, Mt. Vernon Mills, Inc., Owens-Illinois, Inc., Scapa Dryers, Inc., Scapa Group, Ltd., et al.

No. 2004-CA-1665.

Court of Appeal of Louisiana, Fourth Circuit.

March 30, 2005.

COPYRIGHT MATERIAL OMITTED

Samuel M. Rosamond, III, Thomas W. Aycock, Crawford Lewis, PLLC, and Daniel J. Caruso, Frank J. Peragine, James A. Burton, Susan M. Caruso, J. Thomas Hamrick, Jr., Simon Peragine Smith & Redfearn, LLP, New Orleans, LA, for Appellant.

Stephen H. Kupperman, Edward R. Wicker, Jr., Barrasso Usdin Kupperman Freeman & Sarver, LLC., New Orleans, LA, for Defendant/Appellee.

(Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., and Judge DAVID S. GORBATY).

DENNIS R. BAGNERIS, SR., Judge.

The third party defendants/appellants, OneBeacon America Insurance Company and American Employers Insurance Company, appeal the judgment of the district court granting partial summary judgment in favor of the appellee, Eagle, Inc. The judgment also holds the appellants in constructive contempt of court for failure to provide Eagle, Inc., a full and complete defense. We affirm.

Procedural History

Eagle, Inc. (Eagle) is the defendant in thousands of asbestos suits that allege bodily injury from Eagle's sale and installation of asbestos containing products. More specifically, the plaintiffs in the instant matter allege exposure to asbestos while working at a paper mill in Bogalusa, Louisiana. There are five plaintiffs in the suit alleging exposure to asbestos from 1948 to 2000. Eagle filed a third-party action against the appellants as its insurers. Eagle claims that the appellants are obligated under its liability insurance policy not only to defend Eagle, but to indemnify Eagle if cast in judgment.

Eagle moved for partial summary judgment arguing that the appellants were to provide a complete defense to Eagle. In a Judgment dated March 26, 2004, partial summary judgment was granted in favor of Eagle. The district court held that Eagle had sufficiently proven the existence of certain insurance policies issued to it by the appellants and that the appellants had "the duty to provide a full and complete defense to Eagle in any matter where exposure to asbestos is alleged to have occurred during any policy period;" that the insurance policies were not exhausted; and that the appellants made certain improper allocations and acted in bad faith.

Later, Eagle motioned the district court to have the partial summary judgment designated as final, at the same time the appellants moved for a new trial on the partial summary judgment. On April 16, 2004, the district court orally declared Eagle's motion as premature but indicated that the appellants must provide a defense for Eagle until the appellant's Motion for New Trial was considered.

In another Judgment dated May 26, 2004, the district court granted in part the appellants Motion for New Trial only to amend the March 26, 2004 Judgment in regards to liability coverage; denied Eagle's motion to designate the partial summary judgment as final; and found the appellants to be constructive contempt of court. In a subsequent judgment dated June 24, 2004, relating back to the original judgment, the appellants were granted a suspensive appeal and the district court designated the partial summary judgment (as amended by the May 26, 2004 judgment) as final. This timely appeal follows.

Assignments of Error

The appellants seek this court's review of the following six (6) assignments of error¹: (1) that the district court erred in determining on a Motion for Partial Summary Judgment that unauthorized certificates of insurance are sufficient evidence of coverage under liability policies only allegedly issued to Eagle by the American Employers Insurance Company; (2) that the district court erred in imposing on the American Employers an unqualified "duty to provide a full and complete defense in any matter exposure to asbestos is alleged to have occurred during any policy period"; (3) that the district court erred in imposing on OneBeacon America Insurance Company an unqualified "duty to provide a full and complete defense in any matter exposure to asbestos is alleged to have occurred during any policy period"; (4) that the district court erred in granting partial summary judgment in favor of Eagle holding that the insurance policies issued by OneBeacon were not exhausted and that OneBeacon made improper allocations; (5) that the district court erred in holding that the Appellants acted in bad faith; and (6) that the district court erred in holding the appellants in constructive contempt for allegedly failing to provide a defense pending the appellants' Motion for New Trial on Eagle's Motion for Partial Summary Judgment.

We find that there are only two assignments of error which should be addressed, (1) whether the district court erred in granting partial summary judgment in favor of Eagle, and (2) whether the district court erred in finding the appellants in constructive contempt of court.

Standard of Review

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to accomplish these ends. Petti v. Ordon, 2004-1659 (La.App 4 Cir. 11/10/04), 888 So.2d 1064 citing King v. Parish National Bank, 2004-0337, p. 7 (La. 10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)). Appellate courts review grants of summary judgment de novo using the same standard applied by the trial court in deciding the motion for summary judgment. Schmidt v. Chevez, 2000-2456, p. 4 (La.App. 4 Cir. 1/10/01), 778 So.2d 668, 670. According to this standard, a summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Schmidt, 2000-2456 at p. 3, 778 So.2d at 670. The party seeking the summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact. Thomas v. North 40 Land Development, Inc., 2004-0610 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160. A fact is "material" if its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Schmidt, 2000-2456 at p. 3, 778 So.2d at 670 (citing Moyles v. Cruz, 96-0307 (La.App. 4 Cir. 10/16/96), 682 So.2d 326). Simply stated, a "material" fact is "one that would matter on the trial on the merits." Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. Because relators will not bear the burden of proof at trial, it is not necessary that they negate all elements of the plaintiff's claims. Rather, relators need only point out to the court the absence of factual support for one or more elements essential to the plaintiff's claims. Once the movants meet this initial burden, the burden shifts to the plaintiffs to present factual support sufficient to establish their ability to satisfy the evidentiary burden at trial. If plaintiffs then fail to satisfy this burden, there is no genuine issue of material fact and the movers are entitled to summary judgment. Thomas, 2004-0610 at p. 12, 894 So.2d at 1168. The opponent to a properly supported motion for summary judgment may not rest on the mere allegations or denials of his or her pleadings, but must respond by affidavits or as otherwise provided by law setting forth specific facts showing that there exists a genuine issue of material fact for trial. Coates v. Anco Insulations, Inc., 2000-1331, p. 5 (La.App. 4 Cir. 3/21/01), 786 So.2d 749, 753. "Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent's favor." Thomas, 2004-0610 at p. 13, 894 So.2d at 1169. Stated otherwise, any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Barbarin v. Dudley, 2000-0249, p. 6 (La.App. 4 Cir. 12/20/00), 775 So.2d 657, 660. Only when reasonable minds must inevitably conclude that the mover is entitled to summary judgment as a matter of law on the facts before the court is a summary judgment awarded. Thomas, 2004-0610 at p. 13, 894 So.2d at 1169.

Assignment of Error # 1

Legal Analysis

In the instant case, the appellants argue that Eagle can only be cast in judgment for damages for which OneBeacon and American Employers could possibly be found secondarily liable. The appellants rely on the language in Howard v. Baker Heritage Hosiery, 96-335 (La.App. 5th Cir. 10/1/96), 683 So.2d 827, holding that a third-party defendant is only liable to third-party plaintiff if the third party-plaintiff is cast in judgment.

Specifically, as it refers to American Employers, the appellants assert that Eagle introduced unauthenticated certificates of insurance as evidence of coverage. The appellants rely on Barber v. Best, 394 So.2d 779 (La.App. 4th Cir. 1981), wherein the court concluded that any party asserting that an insurance company provides coverage has the burden to prove the existence of the policy sued on, its terms and conditions, and that the claim is within the policy's coverage. The appellants assert that Eagle failed to prove its burden as to American Employers.

Eagle argues that it produced certificates of...