Wallace v. Huber
| Decision Date | 16 April 1992 |
| Docket Number | No. 90-1086,90-1086 |
| Citation | 597 So.2d 1247 |
| Parties | Ladonna Gayle WALLACE, Plaintiff-Appellant, v. Erick Todd HUBER & M & M Entertainment, Inc., Defendants-Appellees. 597 So.2d 1247 |
| Court | Court of Appeal of Louisiana — District of US |
Leonard Knapp, Jr., Lake Charles, for plaintiff-appellant.
Brame, Bergstedt & Brame, Joe Brame, Raggio, Cappel, Chozen & Berniard, Frederick Cappel, Lake Charles, for defendants-appellees.
Before DOUCET and KNOLL, JJ., and COREIL, * J. Pro Tem.
This appeal presents the question of whether defendant's insurance policy excludes plaintiff's claim for damages resulting from an alleged assault and battery at the insured's lounge.
Following the granting of defendants' motion for summary judgment on grounds of no coverage, plaintiff-appellant, Ladonna Gayle Wallace, appeals contending: (1) the insurance provision excluding coverage for assault and battery is ambiguous; and 2) the claim against the insurer is based on the insured's vicarious liability for its employee's alleged negligence and not based on an assault and battery theory.
In her petition for damages, plaintiff alleges that on or about July 29, 1988, she and two friends attended an after hours party at Magnum's, a lounge in Lake Charles. After Rick Bagley, an employee served drinks to the trio, defendant, Erick Todd Huber, threw a drink in plaintiff's face. Huber allegedly attacked plaintiff in full sight of Bagley and inflicted injuries requiring medical treatment.
In addition to naming Huber as a defendant in the present suit, plaintiff named M & M Entertainment, Inc., the owner and operator of Magnum's, as the second defendant for its employee's alleged negligence in:
"a. Allowing persons into Magnum's after hours;
b. Allowing liquor to be served to defendant ERICK TODD HUBER, who was obviously intoxicated;
c. Failing to intervene and protect plaintiff after it was obvious that she was being attacked by defendant, ERICK TODD HUBER;
d. Failing to unlock the door so that other relief could enter the building to aid plaintiff in escaping from the attack and in fact locking the building so that this aid could not come to plaintiff's assistance;
e. Failing to call law enforcement at the outset of the disturbance;
In a subsequent pleading, plaintiff amended her petition and added Nautilus Insurance Company (Nautilus) as the liability insurer for M & M Entertainment.
Defendant, Nautilus, filed a motion for summary judgment contending no liability on its part since the insurance policy issued to M & M specifically excludes from coverage any claim for assault and battery.
The exclusion reads:
Finding the policy exclusion unambiguous and enforceable, the trial court granted the motion for summary judgment.
A motion for summary judgment will 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 mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966.
Interpretation of an insurance contract is usually a legal question that can be properly resolved in the framework of a motion for summary judgment. Ledbetter v. Concord General Corporation, 564 So.2d 732 (La.App. 2nd Cir.1990).
When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. LSA-C.C. art. 2046.
Any ambiguity in an insurance contract will be interpreted in favor of the insured. Murphy v. Louisiana Farm Bur. Mut. Ins., 569 So.2d 637 (La.App. 2nd Cir.1990). However, this rule of interpretation is inapplicable if dependent on strained constructions. Ray v. Republic Vanguard Ins. Co., 503 So.2d 217 (La.App. 3rd Cir.1987).
The court will not supply an ambiguity or allow recovery "under the pretext of interpreting an ambiguity where none exists." Morrison on behalf of Morrison v. Miller, 452 So.2d 390, 392 (La.App. 3rd Cir.1984).
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