Eloycee Everett Wife of/and Aldon Everett VS Gordon N. Philibert, Bel Oaks Builders, Inc. and ABC Insurance Company
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COURT OF APPEAL STATE OF LOUISIANA FIRST CIRCUIT 2008 CA 2270 ELOYCE EVERETT WIFE OF AND ALDON EVERETT VERSUS GORDON N PHILIBERT BEL OAKS BUILDERS INC AND ABC INSURANCE COMPANY Judgment On MAY 8 2009 22nd Judicial District Court of St Tammany State of Louisiana Appeal Parish rendered from the Number 2004 13460 Division The Honorable Elaine W DiMiceli B Judge Presiding David C Clement Counsel for Plaintiffs Appellants Lara J Jensen Eloyce Everett wife of and Aldon Everett New Orleans LA Andre C Gaudin Counsel for Defendants Appellees Dennis J Bel Oaks Builders Phayer Benjamin C Rodgers Sue Buser Metairie LA John S Lawrence Jr Counsel for Defendant Appellee Mandeville LA Gordon N Philibert Gerald A Melchiode Counsel for Defendant Appellee Sarah R Ziomek Essex Insurance Jason J Company Markey New Orleans LA Charles L Dirks III Counsel for Defendant Appellee Baton Hi Insulation L L C Rouge LA RE J r I IA f L P f CARTER C J Coi1 WHIPPLE AND DOWNING JJ DOWNING J Aldon and Plaintiffs Insurance the trial Company court Eloyce Essex s Everett appeal motion for summary s judgment granting a coverage for the tort claims no also ruled that Essex had court For the following reasons we no duty judgment Liability CGL policy issued by ruled that the Commercial General Essex to Gordon N Philibert and Bel Oaks Builders Inc provided In the judgment collectively Bel Oaks The trial alleged in plaintiffs petition to defend Bel Oaks affirm the trial Essex against those claims court judgment FACTS AND PROCEDURAL HISTORY This of a litigation residence in Oaks and its arises out or deficiencies in the construction The Everetts entered into Covington president of alleged defects Mr Philibert to build a a house written contract The Everetts with Bel repeatedly lodged complaints about alleged drastic deficiencies in the construction Bel Oaks resolved the never problems and the contract breach of Later they filed Essex s answer coverage for contract amended an exclusions there a was no The trial with the trial erred in court the insurer of Bel Oaks In damages Warranty judgment asserting that due coverage under the court granted prejudice include that the The New IIome as I allegations and asserted that the policy precluded motion for summary against Essex 1 Essex Warranty Act plaintiffs claims which included property damage bodily injury and Essex filed error and breach of the New Home petition against it denied all emotional and economic Bel Oaks cancelled against Bel Oaks alleging negligent hiring negligent The Everetts filed suit supervision was finding no policy was appeal they coverage under the appeal 2 assert plaintiffs various claims reasons why policy These assignments ambiguous that the Act is not at issue in this policy policy for the claims alleged against the motion and dismissed In plaintiffs to the work of product exclusion did not reference claims for failed to apply to the bodily injury and that the breach of contract exclusion negligence claims STANDARD OF REVIEW grant summary judgment if the pleadings depositions A trial court should answers to that there is judgment summary admissions interrogatories no of law judgments de novo LSA C C P using the determination Succession of Longo contract when no is 04 1938 a together proper La with affidavits if any show and that art 966 B same mover Appellate courts court Lacrouts procedural method of determining the meaning factual issue is raised to review 923 So 2d 717 1 Cir 9 23 05 App is entitled criteria that govern the trial judgment is appropriate of whether summary Summary judgment file issue of material fact genuine matter as a on s v 719 of a Id DISCUSSION Initially the judgment if the the other party movant to evidentiary burden Inc of movant that a successfully meets proof on the motion for summary this burden then the burden shifts present factual support that he she will be able at 06 1827 p 5 proving bears the burden of trial Supreme Services La 5 22 07 and Specialty 958 So 2d 634 638 policy claimed loss falls Co v to satisfy Sonny to the Greer The insurer has the burden within the exclusion Id 06 1827 p 6 958 So 2d at 639 In support of its motion for summary judgment pursuant 966 Essex introduced the Bel Oaks both plaintiffs Pertinent Everett contract the affidavit of the Essex claims examiner provisions of the policy are as The coverage under this property damage the provides in and the CGL of policy pertinent part policy does not apply to bodily personal injury advertising injury or 3 art depositions follows The Contractor Limitation Endorsement injury building to LSA C C P any or injury loss out damage arising or of inadequate improper faulty defective construction The Breach of Contract Exclusion provides This insurance does to apply not claims for breach of whether express or oral nor claims for breach of implied in fact contract whether bodily injury an insured under this or occurrence or to any damages additional policy Furthermore by in law property damage advertising injury personal injury of any type is alleged this exclusion also applies or an implied contract no obligation to defend will arise or be provided for such excluded items us The Endorsement dated 20 July for mold exclusion 2003 provides III pertinent part It is 001 4 00 hereby understood and agreed that or ME OO 1 4 99 is amended Asbestos 5 Mildew are not Silica Dust Lead policy share damages with any Bodily Injury a of any same out Personal type arising out in read Mold covered under this obligation to must pay damages from or alleged to have arisen are to Item 5 of either M1E follows as Bio organic Growth nor are or nor repay anyone else who with conjunction any expenses or occurrences arising of Injury of the Property Damage or Damages inhalation ingestion physical exposure absorption of or toxic substances from asbestos lead silica dust mold bio organic growth or mildew in any form or from any goods products or structures containing same to We first consider the breach of contract exclusion After Essex for presented its evidence it pointed bodily injury and emotional distress construct the tort residence While action and breach of contract a general duty will be able alleged to claims produce an independent pursuant the factual facts to act of of proof at failure can claims properly support a both plaintiffs failed art or 966 C to breach 2 to establish that the they trial since all of their excluded under the breach of contract exclusion 4 to negligence LSA C C P support sufficient satisfy their evidentiary burden were some s action Essex asserted that Essex asserted that Everetts have failed to that the Everetts from Bel Oak acknowledging that demonstrate that Bel Oaks committed of arose out the Everetts contend that In response the policy is does exclude explicitly not and breach of contract In this of contract These exclusions breaches of Inc are not Dietrich In St Louis Dubin 25 996 that the same performs a La La App contractual torts and Company Inc Everetts to prevail 25 996 from duty a as no or 17 8 can create obligation Inc contract 439 So 2d 489 under this one App an App theory they must arising from imposed by 5 La 01 4224 All a person they v argue negligently action in tort acts same Franklin La not 491 See 1096 1 Cir 1989 1039 1040 separate actions when 641 So 2d at 1039 1040 other than La Citing 939 So 2d 563 566 67 Dubin he has committed contract all personal claims 454 So 2d 1081 general and contractual duties and actions in its subcontractors or if their claims for recover 641 So 2d 1036 94 of any type damages merit to the claim of ambiguity 2 Cir 9 106 2 Cir a breach of contract Outbreak in Ouachita Parish No App the exclusion negligent breach but address 551 So 2d 65 66 67 Co as property damage or separate from the breach of separate and distinct and Dubin intentional 1 trial because exclude claims for breach occurrence that it is well settled that the constitute breaches of are or an Trucking Company operative facts We agree actions in are Encephalitis 41 250 41 259 Cases well as bodily injury for may be able to Travelers Ins v oral to at from andor based upon arising to unambiguously Thus there is they Howard 1983 re limited claims tort and v prevail faulty construction caused by the builder The Everetts claim Borden or personal injury contract injury arise in relating their claims sound in tort 2 whether express from the alleged claims can clearly exclude their claims not the policy exclusions case advertising injury if and does ambiguous they v or may Able omissions may give rise Moving 1 Cir 1983 show that their to Storage However for the negligence claims the breach of contract claim Particularly both See the tort claim must arise the contract See In re St Louis 41 250 939 So 2d at 566 567 where the trial court ruled in favor of Encephalitis because plaintiffs though there even obligation plaintiff s petition supported which was an alleged also a breach of arise from the duty created by the duty personal to the Everetts personal injury contract to build a house including the arise from the of any not alleged by The not stem from conducting ambiguous and clearly exclude our that the the de are novo possible arguments by art sufficient prevail there 966 C to personal are no 2 no contractual showing of a All the duty to breach of a for breaches of duty confected review we conclude that the which injury damages they will be able to summary Bel pretermitted the Everetts have failed Accordingly claims tort properly and general duty by contract policy Oaks at issue is the and policy or provide coverage for to produce satisfy their judgment plaintiffs 6 its was Pursuant to LSA the factual support evidentiary burden appropriate claims to We conclude genuine issues of material fact and the CGL policy issued by Essex Bel Oaks does not all The discussion of the other plaintiffs to the Everetts is therefore establish that at trial our and mildew policy and the breach of contract clause in subcontractors may become liable C C P the contrary a breach of contract The record is void Bel Oaks There is only allegations in the petition After to by mold and emotional distress bodily injury residence a which is competently negate that the Essex exclusions clearly and unambiguously do the Everetts construct timely to coverage for provide all persons bodily injury and emotional that may have been caused ones alleged underlying negligent showing to and emotional distress the Everetts arguments Despite review of the record indicates that their claims for distress duty owed separate and distinct action in tort a however all of the claims of Here breach in the contractual alleged to The cost of this appeal Everett and Aldon Everett is assessed against the plaintiffs appellants Eloyce This memorandum opinion is issued in accordance with Uniform Rules of Louisiana Courts of Appeal Rule 2 16 1B AFFIRMED 7
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