Ott v. Lpk Systems, Inc.
| Decision Date | 28 November 2001 |
| Docket Number | No. 2000-CA-1813.,No. 2000-CA-1814.,No. 2000-CA-1815.,2000-CA-1813.,2000-CA-1814.,2000-CA-1815. |
| Citation | 812 So.2d 38 |
| Parties | Nancy Ruiz OTT v. LPK SYSTEMS, INC., Gourmet Pizza, Inc., Michel Fredj, Vasken Kaltakdjian, Malcolm Hill, Phillip Anthony, The Travelers Insurance Company. Richard Lopiccolo, Individually and on Behalf of his Minor Children, Richard John Stokes Lopiccolo and Cecilia Frances Lopiccolo v. Gourmet Pizzas, Inc., d/b/a Louisiana Pizza Kitchen, Michel Fredj, Vasken Kaltakdjian and Travelers Insurance Company. Albert and Joanne Witcoskie, Individually and as Administrators of the Estate of Michael Witcoskie v. Gourmet Pizza, Inc., d/b/a Louisiana Pizza Kitchen, LPK Systems, Inc., Michel Friedj, Vasken Kaltakdjian, Malcolm Hill, Phillip Anthony, the Travelers Insurance Company. |
| Court | Court of Appeal of Louisiana — District of US |
Robert T. Garrity, Jr., Wayne T. Crocket, Richard E. Anderson, Harahan, LA, Counsel for Plaintiff/Appellant, Nancy Ruiz Ott.
T. Daniel Pick, Wolfe, Begoun & Pick, New Orleans, LA, Counsel for Plaintiffs/Appellants, Albert and Joanne Witcoskie, etc.
Gerald Melchiode, Galloway, Johnson, Tompkins & Burr, New Orleans, LA, Counsel for Defendant/Appellee, Essex Insurance Co.
Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge JAMES F. McKAY, III, and Judge DENNIS R. BAGNERIS, SR.
Albert and Joann Witcoskie ("Witcoskies"), and Nancy Ruiz Ott ("Ott"), appellants, seek to reverse the trial court's judgment granting a motion for summary judgment in favor of Essex Insurance Company.
Michael Witcoskie, Cara LoPiccolo and Santana Meaux were employees at the Louisiana Pizza Kitchen that were shot and killed in a robbery on December 1, 1996 at the restaurant. The Witcoskies filed a lawsuit on their behalf and on behalf of their son Michael Witcoskie's estate for damages, and Ott on behalf of her son Santana Meaux's estate, against LPK Systems Inc., Gourmet Pizza Inc., d/b/a Louisiana Pizza Kitchen, Michael Friedj, Vasek Kaltakdjian and their insurer Travelers Insurance Company who was later substituted by Essex Insurance Company.
Essex Insurance Company filed a motion for summary judgment based on the exclusions contained in the policy that precludes coverage and recovery under the policy for (1) assault and battery, (2) intentional acts of an insured, (3) negligent hiring and/or supervision, (4) bodily injury to an employee. The trial court granted the motion for summary judgment. The trial court held that the "bodily injury to an employee" exclusion and the "intentional acts of an insured" exclusion were applicable to the case and as such precluded recovery by the Witcoskies. The Witcoskies and Ott appeal from this judgment. Cara LoPiccolo's family did not seek an appeal.
On appeal, the Witcoskies and Ott contend that the trial court erred in granting Essex's motion for summary judgment and for holding that the policy's exclusion for bodily injuries to employees was applicable, excluding coverage. The Witcokies and Ott argue that the question of whether Michael Witcoskie and Santana Meaux's were "employees" in the course of their employment at the time of their murder, is a question of fact, material to the case, and therefore sufficient to preclude summary judgment.
Further, the Witcoskies and Ott argue that the trial court erred in holding that the policy's exclusion was applicable, because Michael Witcoskie and Santana Meaux were not in the course and scope of their employment at the time of their murders, and therefore should not have been considered an "employee" as defined by Mundy v. Department of Health and Human Resources, 593 So.2d 346 (La.1992). Also, the Witcoskies and Ott argue that whether Michael Witcoskie and Santana Meaux were within the course and scope of their employment is a material question of fact that is sufficient to preclude the motion for summary judgment.
Ott further argues that the trial court erred in finding that the insurance policy submitted by Essex Insurance to the trial court in support of its motion for summary judgment is the same insurance policy issued by Essex Insurance to Gourmet Pizza and as such is a material question of fact that is sufficient to preclude the motion for summary judgment. We pretermit discussion of this issue and only will address the issue of whether the trial court erred in granting the motion for summary judgment filed by Essex.
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Potter v. First Federal Sayings and Loan Association of Scotlandyille, 615 So.2d 318 (La.1993). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, show there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. La. Code Civ.P. art. 966.
A fact is material if it is essential to plaintiffs cause of action under the applicable theory of recovery and without which the plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant's ultimate success, or determine the outcome of the legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4 Cir.1992), writ not considered, 613 So.2d 986 (La.1993).
A dispute as to the issue of whether, as a matter of law, the language in an insurance policy provides coverage to a party can properly be resolved within the context of a motion for summary judgment. Domingue v. Reliance Insurance Co., 619 So.2d 1220 (La.App. 3 Cir.1993).
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 facts shown by the evidence supporting the motion, under which coverage could be afforded. Westerfield v. LaFleur, 493 So.2d 600 (La.1986); Gaspard v. Northfield Ins., 649 So.2d 979 (La.App. 3 Cir.1994).
The purpose of liability insurance is to afford the insured protection from damage claims and policies should be construed to effect, and not to deny, coverage. Reynolds v. Select Properties, Ltd., 634 So.2d 1180 (La.1994). A provision, which seeks to narrow the insurer's obligation, is strictly construed against the insurer. Garcia v. St. Bernard Parish School Board, 576 So.2d 975 (La.1991). However, insurance companies have the right to limit coverage in any manner they desire, as long as the limitations do not conflict with statutory provisions or public policy. Gunn v. Automotive Casualty Insurance Co., So.2d 154 (La.App. 3 Cir.1993). As our Supreme Court stated in Reynolds, supra at 1183.
"The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists, nor does it authorize the court to make a new contract for the parties or disregard the evidence as expressed, or to refine away terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties . . . ."
The purpose of the intentional injury exclusion is to restrict liability insurance coverage by denying coverage to an insured in circumstances where the insured acts deliberately and intends or expects bodily injury to another. The exclusion is "designed to prevent an insured from acting wrongfully with the security of knowing that his insurance company will `pay the piper' for the damages." Transamerica Ins. Group v. Meere, 143.11Ariz. 351, 694 P.2d 181, 186 (1984). Accord, United Servs. Auto. Ass'n v. Elitzky, 358 Pa.Super. 362, 517 A.2d 982 (1986).
The purpose of liability insurance, on the other hand, is to afford the insured protection from damage claims. Policies should be construed to effect, not deny, coverage. Borden, Inc. v. Howard Trucking Co., Inc., 454 So.2d 1081, 1090 (La. 1983); LeJeune v. Allstate Ins. Co., 365 So.2d 471, 479 (1978). And an exclusion from coverage should be narrowly contrued. Snell v. Stein, 261 La. 358, 259 So.2d 876 (1972).
The effect of the language used in this exclusion clause is not always clear. In fact, when construed in light of the myriad fact situations to which it has been applied, it is often ambiguous. See Annot. Construction and application of provision of liability insurance policy expressly excluding injuries intended or expected by insured, 31 A.L.R.4th 957, 978 n. 1 (1984). This Court noted in Pique v. Saia, 450 So.2d 654, 655 (1984) that the clause is indeed ambiguous.
Ambiguity in an insurance contract must be resolved according to the general rules governing contract interpretation. Albritton v. Fireman's Fund Ins. Co., 224 La. 522, 70 So.2d 111 (1953). Unless ambiguous, words used in an insurance contract will be given their commonly prevailing meaning. La.Civ.Code art. 2047. Ambiguous policy provisions are to be construed against the confector, the insurer. La.Civ.Code art. 2056; Salomon v. Equitable Life Assurance Soc'y of U.S., 202 La. 1001, 13 So.2d 329 (1943). Ambiguity will also be resolved by ascertaining how a reasonable insurance policy purchaser would construe the clause at the time the insurance contract was entered. See La. Civ.Code art. 2045.
This clause does not by its precise terms exclude coverage for bodily injury caused by the insured's intentional act. Rather, it excludes coverage for bodily injury "expected or intended from the standpoint of the Insured." The phrase "bodily injury . . . which is expected or intended," emphasizes that an excluded injury is one which the insured intended, not one which the insured caused, however intentional the injury producing act. The next phrase, "from the standpoint of the Insured," emphasizes again that it is the insured's subjective intention and...
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