Love v. Sirey

• Decision Date: 30 May 2013
• Docket Number: No. 12–CA–823.,12–CA–823.
• Citation: 119 So.3d 732
• Parties: Connie LOVE v. Jeanne SIREY.
• Court: Court of Appeal of Louisiana — District of US

119 So.3d 732

Connie LOVE
v.
Jeanne SIREY.

No. 12–CA–823.

Court of Appeal of Louisiana,
Fifth Circuit.

May 30, 2013.

[119 So.3d 735]

Jason P. Foote, Desmonde Bennett, Attorneys at Law, Metairie, LA, for Defendant/Appellant.

John E. McAuliffe, Jr., Attorney at Law, Metairie, LA, for Intervenor/Appellee.

Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY and STEPHEN J. WINDHORST.

STEPHEN J. WINDHORST, Judge.

[5 Cir. 2]Jeanne Sirey appeals a summary judgment granted in favor of her homeowners insurer, State Farm Fire and Casualty Company (“State Farm”), finding that State Farm owed no duty to defend or indemnify Ms. Sirey against the claims asserted by Connie Love and denying Ms. Sirey's cross-motion for summary judgment. For the following reasons, we affirm in part, vacate in part and remand the matter back to the trial court.

PROCEDURAL HISTORY

On February 27, 2007, Ms. Love filed a Complaint for Personal Injuries against Ms. Sirey claiming that Ms. Sirey committed continuous assaults and batteries on Ms. Love through inappropriate comments and inappropriate bodily contact, which occurred at their place of employment, Motiva.¹ Subsequently, Ms. Sirey contacted State Farm and reported the pending lawsuit. State Farm proceeded to defend Ms. Sirey pursuant to a reservation of rights by appointing separate counsel to represent Ms. Sirey. State Farm filed an Intervention for Declaratory Judgment and then a motion for summary judgment asserting that coverage defenses precluded coverage to Ms. Sirey. Ms. Sirey filed a cross-motion for summary judgment contending she had coverage under the policy. The trial [5 Cir. 3]court granted State Farm's summary judgment and denied Ms. Sirey's cross-motion for summary judgment. This appeal followed.

DISCUSSION

When reviewing a trial court's grant of a motion for summary judgment, a de novo standard of review is applied. Flowers v. Wal–Mart Stores, Inc., 12–140 (La.App. 5 Cir. 7/31/12), 99 So.3d 696. In summary judgment there is no live testimony or determination of credibility of evidence by the trial court. La. C.C.P. art. 966 B(2); KMJ Services, Inc. v. Hood, 12–757, p. 4 (La.App. 5 Cir. 4/10/13), 115 So.3d 34, 2013 WL 1442631;Hutchinson v. Knights of Columbus, Council No. 5747, 03–1533 (La.2/20/04), 866 So.2d 228. Therefore, courts of appeal apply the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. KMJ Services, Inc., 12–757 at 4, 115 So.3d at 36.

Generally, in a motion for summary judgment, the mover retains the burden of proof. After adequate discovery, if the mover sustains this initial burden by showing an absence of factual support for at least one essential element of the adverse

[119 So.3d 736]

party's claim, action, or defense, then the burden shifts to the adverse party to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. La. C.C.P. art. 966 C(1) & (2). Subsequently, if the adverse party fails to produce factual support to show that he will be able to meet his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966 C(2). Robinson v. Jefferson Parish Sch. Bd., 08–1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043,writ denied,09–1187 (La.9/18/09), 17 So.3d 975,citing Champagne v. Ward, 03–3211 (La.1/19/05), 893 So.2d 773, 776–77.

[5 Cir. 4]Insurance policies are contracts between the insured and insurer wherein the agreement governs the nature of their relationship. La. C.C. art.1983. An insurance policy is a contract that must be construed using the general rules of contract interpretation set forth in the Civil Code. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co., 93–0911 (La.1/4/94), 630 So.2d 759, 763;Peterson v. Schimek, 98–1712 (La.3/2/99), 729 So.2d 1024, 1028. Whether an insurance policy provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. Brewster v. Hunter, 09–932 (La.App. 5 Cir. 3/9/10), 38 So.3d 912, 915, writ denied, 10–773 (La.6/4/10), 38 So.3d 305.

The purpose of liability insurance is to provide the insured protection from claims of damage. Peterson, 729 So.2d at 1028. Courts must determine the intent of the parties when interpreting an insurance policy. La. C.C. art.2045. Insurance policies should be interpreted to effect coverage, not deny coverage. Yount v. Maisano, 627 So.2d 148, 151 (La.1993). An exclusion from coverage should be narrowly construed. Breland v. Schilling, 550 So.2d 609, 610 (La.1989). An insurance policy should not be interpreted unreasonably or in a strained manner in an attempt to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Bernard v. Ellis, 11–2377 (La.7/2/12), 111 So.3d 995;Graphia v. Schmitt, 08–613 (La.App. 5 Cir. 1/13/09), 7 So.3d 716, 718. Absent a conflict with public policy or statutory provisions, insurers, like other persons, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the obligations they contractually assume under the policy. Id. When the policy's language is clearly expressed and unambiguous, the insurance policy must be enforced as written and no further interpretation may be made to determine the intent of the [5 Cir. 5]parties. Id.;La. C.C. art.2046. However, when the policy provisions are ambiguous and susceptible to two or more reasonable interpretations, then those provisions are construed against the insurer and in favor of coverage. La. C.C. art.2056; Louisiana Ins. Guar. Ass'n, 630 So.2d at 764.

In general, an insurer's obligation to defend a lawsuit against its insured is broader than its liability for damage claims. Yount, 627 So.2d at 153. A duty to defend an insured is determined by the allegations of the plaintiff's petition wherein the insurer is obligated to provide a defense unless the petition unambiguously and clearly excludes coverage. Id., citing American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969); Meloy v. Conoco, Inc., 504 So.2d 833 (La.1987). Assuming all the allegations of the plaintiff's petition are true, if there would be coverage under the policy and liability to the plaintiff, the insurer must defend its insured irrespective of the

[119 So.3d 737]

final outcome of the lawsuit. Id.;Graphia, 7 So.3d at 718. The allegations of the petition are liberally construed to determine whether they set forth grounds which bring the claim within the insurer's duty to defend. Id.

Assignment of Error One

In her first assignment of error, Ms. Sirey contends that the trial court erred by finding that the acts claimed in Ms. Love's petition do not constitute an insurable “occurrence” under the policy issued to Ms. Sirey by State Farm.

State Farm contends that the policy defines an “occurrence” as an “accident.” State Farm argues that the acts of battery and assault are intentional by nature and thus, do not constitute an “occurrence” under the policy. State Farm further claims that when reviewing the acts from the point of view of Ms. Love, the actions by Ms. Sirey do not constitute an “accident.” Ms. Love testified in her deposition that she did not believe that the actions by Ms. Sirey were an accident.

[5 Cir. 6]Section II of the policy entitled “Liability Coverage,” provides:

Coverage L—Personal Liability:

If a claim is made or a suit is brought against an Insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:

1. Pay up to our limit of liability for the damages for which the Insured is legally liable; and

2. Provide a defense at our expense by counsel of our choice. We may make any investigation and settle any claim or suit that we decide is appropriate. Our obligation to defend any claim or suit ends when the amount we pay for damages, to effect settlement or satisfy a judgment resulting from the occurrence, equals our limit of liability.

Thus, for the policy to afford coverage to Ms. Sirey there must have been a suit brought against the insured, Ms. Sirey, for “bodily injury” or “property damage” caused by an “occurrence” as defined in the policy.

In Ms. Love's petition and first amended petition, she claimed that Ms. Sirey repeatedly committed several assaults and batteries on Ms. Love over a period of time and the “touchings were offensive” to Ms. Love. Ms. Love additionally claimed that as a result of “continuous unchecked...