Sanchez v. Callegan

• Decision Date: 18 February 2000
• Docket Number: No. 99CA0137.,99CA0137.
• Citation: 753 So.2d 403
• Parties: Ronald J. SANCHEZ, II and Mona P. Sanchez, Individually and on Behalf of Their Minor Child, K.L.S. v. Curtis CALLEGAN, Jr. and Jill Gregoire Callegan.
• Court: Court of Appeal of Louisiana — District of US

753 So.2d 403

Ronald J. SANCHEZ, II and Mona P. Sanchez, Individually and on Behalf of Their Minor Child, K.L.S. v. Curtis CALLEGAN, Jr. and Jill Gregoire Callegan.

No. 99CA0137.

Court of Appeal of Louisiana, First Circuit.

February 18, 2000.

Malcolm J. Dugas, Jr., Lloyd A. Capello, Jr., Gonzales, for Plaintiffs-Appellants.

Lindsey J. Leavoy, Baton Rouge, for Defendant-Appellee.

Before: FOIL, WHIPPLE, and GUIDRY, JJ.

GUIDRY, J.

Appellants, Ronald J. Sanchez, II and Mona P. Sanchez, individually and on behalf of their minor child, Kayla L. Sanchez, appeal the trial court's grant of summary judgment in favor of appellee, Audubon Insurance Company. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On or about March 9-10, 1996, appellants' daughter, K.L.S., was a guest in the home of Curtis Callegan, Jr. and Jill Gregoire Callegan. While staying in the Callegan home, K.L.S. was sexually molested by Mr. Callegan.

Prior to the incident in question, appellee issued a policy of insurance to the Callegans covering their mobile home, which policy was in effect on March 9 and 10, 1996. Section 2 of the policy contains the following exclusions from coverage.

1. Coverage E—Personal Liability and Coverage F—Medical Payments to Others We do not cover bodily injury or property damage:

a. Which is expected or intended by the insured person.

* * * * * *

c. Arising out of communicable diseases or sickness as may have been transmitted by you or any insured person or as may have arisen from your or any person's activities. Such coverages also do not apply to Bodily Injury or Property Damage arising out of any sexual act, including, but not limited to, assault, molestation, abuse, incest or rape.

A petition for damages was filed by appellants against the Callegans on March 3, 1997. In response thereto, the Callegans filed an answer and Mrs. Callegan filed a peremptory exception of no cause of action on March_1119, 1997. On May 13, 1997, appellants filed a supplemental petition adding appellee as a defendant in the lawsuit.

On July 16, 1997, appellee filed a motion for summary judgment. On November 12, 1997, appellants filed a motion for partial summary judgment, which motions were heard on that date.¹ Both motions sought resolution of the question of whether the mobile home homeowner's insurance policy issued by appellee excluded coverage for any damages sustained by appellants. Two judgments were signed by the court on December 3, 1997. The first judgment denied appellants' motion for partial summary judgment, and the second judgment granted appellee's motion, dismissing appellee from the suit with prejudice. By motion of appellants, an order granting a devolutive appeal from the denial of appellants' motion for partial summary judgment was signed on January 20, 1998. However, after the appeal was lodged, this court issued a rule to show cause on January 25, 1999 as to why the appeal should not be dismissed on the grounds that a partial judgment is not appealable. Thereafter, the parties filed a joint motion to designate the judgment as final, and on February 11, 1999, an order designating the December 3, 1997 judgment as final was signed.

On appeal, appellants assert the following assignment of error: the trial court erroneously granted appellee's motion for summary judgment and denied appellants' motion for summary judgment.

DISCUSSION

On appeal, summary judgments are reviewed de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. J. Ray McDermott, Inc. v. Morrison, 96-2337, p. 9J (La.App. 1st Cir.11/7/97), 705 So.2d 195, 202, writs denied, 97-3055, 97-3061-63 (La.2/13/98), 709 So.2d 753, 754. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750.

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. Rambo v. Walker, 96-2538, p. 4 (La.App. 1st Cir.11/7/97), 704 So.2d 30, 32. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2).

The burden of proof is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2).

Interpretation of an insurance contract is usually a legal question which can be properly resolved in the framework of a motion for summary judgment. Madden v. Bourgeois, 95-2354, p. 3 (La.App. 1st Cir.6/28/96), 676 So.2d 790, 792. When the language of an insurance policy is clear and unambiguous, a reasonable interpretation consistent with the obvious meaning and intent of the policy must be given. Alford v. Kaiser, 589 So.2d 546, 548 (La. App. 1st Cir.1991), 'writ denied, 594 So.2d 893 (La.1992). However, 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. Gaspard v. Northfield Insurance Company, 94-510, 94-511, p. 3 (La. App. 3rd Cir.11/2/94), 649 So.2d 979, 981, writ denied, 94-2906 (La.2/9/95), 650 So.2d 1166.

On appeal, appellants assert that as to exclusion (1)(a), they do not allege that Ms. Callegan ever "expected or intended" bodily injury to Kayla. Furthermore, appellants argue that as to exclusion (1)(c), they have not alleged that Ms. Callegan performed any sexual act. Thus, according to appellants, these exclusions do not apply to Ms. Callegan's negligent conduct. Appellee, on the other hand, argues that under both the "arising out of any sexual act" exclusion and the "expected or intended act" exclusion, there is no coverage for the allegations against Ms. Callegan.

We first note that appellants have cited several cases from other jurisdictions as persuasive authority in support of their arguments. However, the pivotal issues in Doe v. Franklin, 930 S.W.2d 921 (Tex. App.—El Paso 1996), and J.S. v. R.T.H., 301 N.J.Super. 150, 693 A.2d 1191 (1997), aff'd, 155 N.J. 330, 714 A.2d 924 (1998), are distinguishable from the critical issue for determination in the present case. These two cases were concerned with the question of whether an individual can be held liable for her failure to protect a minor child from sexual abuse by a third person that the individual knew or should have known had the propensities for this type of behavior. Whereas, in the present appeal, the question is not whether Ms. Callegan can be held liable for such actions, but whether the policy of insurance issued by appellee covers such actions in the event Ms. Callegan is held liable.

Appellants also point this court's attention to the unpublished decision of Westfield Companies v. Kette by the Ohio Court of Appeals as additional support for its argument. However, appellants fail to note that the decision was reversed by the Supreme Court of Ohio on the authority of Cuervo v. Cincinnati Insurance Company, 76 Ohio St.3d 41, 665 N.E.2d 1121 (1996). Westfield Companies v. Kette, 77 Ohio St.3d 154, 672 N.E.2d 166 (1996). According to the Supreme Court of Ohio,

incidents of intentional acts of sexual molestation of a minor do not constitute "occurrences" for purposes of determining insurance coverage; ... intent to harm inconsistent with an insurable incident is properly inferred as a matter of law from deliberate acts of sexual molestation of a minor; and ... public policy of the state of Ohio, which prohibits the...