All Crane Rental of Georgia VS Ricky Vincent d/b/a Tree Surgery by Ricky Vincent

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0116 ALL CRANE RENTAL OF GEORGIA INC VERSUS RICKY VINCENT DBA TREE SURGERY BY RICKY VINCENT Judgment rendered September 10 2010 Appealed from the 20th Judicial District Court in and for the Parish of East Feliciana Louisiana Trial Court No 38089 Honorable William G Carmichael Judge L PHILLIP CANOVA JR PLAQUEMINE LA ATTORNEY FOR PLAINTIFFAPPELLEE ALL CRANE RENTAL OF GEORGIA INC LARRY N GUY ATTORNEY FOR BATON ROUGE LA DEFENDANT APPELLANT RICKY VINCENT DBA TREE SURGERY BY RICKY VINCENT KARL H SCHMID JAY RUSSELL SEVER ATTORNEYS FOR DEFENDANT APPELLEE NEW ORLEANS LA SCOTTSDALE INSURANCE CO KEVIN P LANDRENEAU ATTORNEY FOR BATON ROUGE LA DEFENDANTAPPELLEE WILLIAMS INSURANCE AGENCY BEFORE KUHN PETTIGREW AND McCLENDON 33 PETTIGREW 3 In this case Ricky Vincent dba Tree Surgery by Ricky Vincent Vincent challenges the trial court judgment granting summary judgment in favor of Scottsdale s Insurance Company Scottsdale and dismissing his claims for damages For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY This matter arises in connection with a lawsuit filed by plaintiff All Crane Rental of Georgia Inc All Crane against defendant Vincent All Crane alleged that on September 30 2005 Vincent entered into a rental contract with All Crane for the use of a Manitex 22101 C 21TonMack CL713 the crane in his tree trimming business All Crane asserted that Vincent contractually agreed that any damage occurring while the crane was in his care custody and control was his responsibility All Crane further alleged that the crane was damaged and repaired while Vincent had care custody and control of it and that Vincent had failed to pay several months of rental fees Vincent answered All Crane petition generally denying the allegations and filed a s cross claim naming Williams Insurance Agency Inc Burns Wilcox Williams Certain Underwriters at Lloyd London s Burns Wilcox Ltd Underwriters and Scottsdale as defendants In said cross claim Vincent alleged that because of the way Williams wrote up the insurance certificates it is quite possible that Scottsdale has an interest in this litigation and out of an abundance Lof caution is hereby named as a defendant In response to the cross claim Scottsdale filed a peremptory exception raising the objection of no cause of action and a dilatory exception raising the objection of vagueness and ambiguity After a hearing on the peremptory exception raising the objection of no cause of action the court sustained the exception and ordered Vincent to amend his petition within fifteen days By order of the court dated September 10 2007 Vincent claims against Burns Wilcox were dismissed s with prejudice Subsequently Underwriters appeared before the court unopposed on November 26 2007 on a motion for summary judgment regarding Vincent claims The court granted summary judgment in s favor of Underwriters thereby dismissing Vincent claims against Underwriters with prejudice s 2 On September 25 2007 Vincent filed an amended petition for damages alleging as follows Scottsdale is liable unto third party plaintiff Vincent for coverage as an insurer On the Certificate of Liability issued by Williams defendant Scottsdale is listed as the insurer on the inland marine policy This policy covered according to the Acord 25 physical damage on equipment Manitex 221OIC21 Ton Crane that included boom jib and overload The time period of the effective date of policy was October 3 2005 to January 3 2006 Scottsdale filed a motion for summary judgment on June 3 2008 alleging that there were no genuine issues of material fact as to Vincent claims against Scottsdale s and that it was entitled to summary judgment as a matter of law Scottsdale argued that the policy it issued to Vincent Policy No CLS1176939 provided commercial general liability CGL coverage for the period from October 5 2005 through October 5 2006 Scottsdale maintained that the claims made by Vincent were not covered by this policy as it specifically excluded coverage for property that Vincent owns or leases or property that is in his care custody or control The matter was heard by the trial court on September 22 2008 at which time the trial court granted summary judgment in favor of Scottsdale On September 14 2009 the trial court rendered judgment granting Scottsdale motion for summary judgment s and dismissing with prejudice Vincent claims against Scottsdale The trial court found s that the insurance policy in question provided no coverage for the loss sustained by Vincent and therefore Scottsdale had no obligation to defend Vincent It is from this judgment that Vincent has appealed assigning the following specifications of error 1 The trial court was clearly wrong when it determined that the insurance binder issued to Vincent on 10 605 which describes Scottsdale as the principal to an inland marine policy designated as policy no 6O51M1O and specifically covering Boom Jib and overload O3 was somehow meant to describe a policy issued by Underwriters J Z The original judgment in this case which was rendered on October 16 2008 formed the basis of a prior appeal by Vincent However because the October 16 2008 judgment did not include appropriate decretal language this court dismissed Vincent previous appeal and remanded the matter to the trial court for s further proceedings All Crane Rental of Georgia Inc v Ricky Vincent 20090118 La App 1 Cir 09 11 9 unpublished Subsequently on September 14 2009 the trial court rendered a valid final judgment which forms the basis of the appeal currently before us 3 2 The trial court erred when it granted Scottsdale motion for summary s judgment finding that no genuine issue of material fact existed on the issue of insurance coverage on behalf of Vincent 3 The trial court erred when it failed to apply the law of principal and agent and hold Scottsdale liable as insurer to Vincent based on the insurance binder ALONE 4 The trial court erred by not finding that in addition to the insurance binder Scottsdale was liable to indemnify Vincent under the terms and provisions of a CGL policy which issued long after the damages which form as a basis for this lawsuit occurred 5 The trial court erred when it failed to order Scottsdale to provide a defense to Vincent to pay for past attorney expenses paid by their client Vincent UDGMENT SUMMARY A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact Gonzales v Kissner 2008 2154 p 4 La App 1 Cir 9 24 So 214 217 Summary judgment is properly 09 11 3d granted if the pleadings depositions answers to interrogatories and admissions on file together with 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 La Code Civ P Art 966 6 Summary judgment is favored and is designed to secure the just speedy and inexpensive determination of every action La Code Civ P art 966 Aucoin v 2 A Rochel 2008 1180 p 5 La App 1 Cir 12 5 So 197 200 writ denied 08 23 3d 20090122 La 3 5 So 143 09 27 3d On a motion for summary judgment the burden of proof is on the mover If however the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the mover burden on the s motion does not require that all essential elements of the adverse party claim action s or defense be negated Instead the mover must 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 the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial If the adverse party fails to meet this burden there is no genuine issue of 4 material fact and the mover is entitled to summary judgment La Code Civ P art 2 C 966 Robles v ExxonMobile 2002 0854 p 4 La App 1 Cir 3 844 03 28 2d So 339 341 In ruling on a motion for summary judgment the trial court role is not to s evaluate the weight of the evidence or to determine the truth of the matter but instead to determine whether there is a genuine issue of triable fact Guardia v Lakeview Regional Medical Center 2008 1369 p 3 La App 1 Cir 5 13 So 625 09 8 3d 628 A trial court cannot make credibility decisions on a motion for summary judgment Monterrey Center LLC v Ed Partners Inc 2008 0734 p 10 La App 1 ucation Cir 12 5 So 225 232 In deciding a motion for summary judgment the trial 08 23 3d court must assume that all of the witnesses are credible Independent Fire Ins Co v Sunbeam Corp 992181 pp 1617 La 2 755 So 226 236 00 29 2d Despite the legislative mandate that summary judgments are now favored factual inferences reasonably drawn from the evidence must be construed in favor of the parry opposing the motion and all doubt must be resolved in the opponent favor s Willis v Medders 20002507 p 2 La 12 775 So 1049 1050 00 8 2d Appellate courts review evidence de novo under the same criteria that govern the trial court determination of whether summary judgment is appropriate s Boudreaux v Vankerkhove 20072555 p 5 La App 1 Cir 8 993 So 08 11 2d 725 729 730 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 Ernest v Petroleum Service Corp 20022482 p 3 La App 1 Cir 11 868 So 96 97 writ denied 20033439 La 2 866 So 830 03 19 2d 04 20 2d The issue of whether an insurance policy as a matter of law provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment Dixon v Direct General Ins Co of Louisiana 2008 0907 p 4 La App 1 Cir 3 12 So3d 357 360 Summary judgment declaring a lack 09 27 of coverage under an insurance policy may not be rendered unless there is no 5 reasonable interpretation of the policy when applied to the undisputed material facts shown by the evidence supporting the motion under which coverage could be afforded Halphen v Borja 20061465 p 3 La App 1 Cir 5 961 So 1201 1204 07 4 2d writ denied 20071198 La 9 964 So 338 An insurer seeking to avoid 07 21 2d coverage through summary judgment must prove some provision or exclusion applies to preclude coverage Henly v Phillips Abita Lumber Co Inc 20061856 p 4 La App 1 Cir 10 971 So 1104 1108 07 3 2d INSURANCE POLICY INTERPRETATION An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code Lewis v 7abbar 20081051 p 5 La App 1 Cir 1 5 So 250 255 09 12 3d The judicial responsibility in interpreting insurance contracts is to determine the parties common intent See La Civ Code art 2045 Words and phrases used in a policy are to be construed using their plain ordinary and generally prevailing meaning unless the words have acquired a technical meaning See La Civ Code art 2047 Where the language in the policy is clear unambiguous and expressive of the intent of the parties the agreement must be enforced as written See La Civ Code art 2046 The court should not strain to find ambiguity where none exists Strickland v State Farm Ins Cos 607 So 769 772 La App 1 Cir 1992 Whether a contract is 2d ambiguous is a question of law Id DISCUSSION The crux of Vincent appeal is that not only does the CGL policy issued by s Scottsdale provide coverage for the damages at issue but the Certificate Of Liability Insurance issued on October 6 2005 by Williams as an agent for Scottsdale is the equivalent of a binder and operates to provide coverage Thus Vincent maintains the trial court erred in failing to order Scottsdale to provide Vincent with a defense We find no merit to Vincent arguments on appeal s M In support of its motion for summary judgment below Scottsdale submitted into evidence a copy of the Certificate Of Liability Insurance arguing that the certificate did not create coverage under its policy According to the certificate there were allegedly two policies of insurance issued by Scottsdale a CGL policy effective from 10 to 05 5 06 5 10 and an inland marine policy effective from 10 to 1 The following 05 3 06 3 description is given as to the coverage provided GENERAL LIABILITY INCLUDES ALL CRANE RENTAL OF GEORGIA INC AS AN ADDITIONAL INSURED INLAND MARINE INLCUDES LOSS PAYEE IN FAVOR OF ALL CRANE RENTAL OF GEORGIA INC INLAND MARINE COVERS PHYSICAL DAMAGE ON EQUIPMENT THAT INCLUDES BOOM JIB AND OVERLOAD The only insurer listed on the certificate is Scottsdale Citing La R S 881 22 and Citgo Petroleum Corp v Yeargin Inc 951574 La App 3 Cir 97 19 2 690 So 154 writs denied 971223 971245 La 9 701 So 169 2d 97 19 2d 170 Scottsdale maintained that the certificate failed to meet the requirements of La R S 881 22 and thus could not be considered in determining whether it modified the terms of coverage afforded by its CGL policy At the outset we note that a certificate of insurance is not the same as a binder A binder is used to bind insurance temporarily pending the issuance of the policy No binder shall be valid beyond the issuance of the policy as to which it was given La S 870 R 22 Thus binders are authorized by law Although a binder is sufficient to evidence a contract it does not stand independent from the policy Donaldson v United Community Ins Co 981187 p it La App 3 Cir 2 741 So 99 10 2d 676 683 writ denied 990727 La 5 740 So 1285 A binder is subject to the 99 7 2d conditions of the policy contemplated Pigron v Allstate Ins Co 2007641 p 6 La App 3 Cir 12 972 So 1269 1273 07 19 2d A binder is not an insurance policy but is generally taken to be a contract providing for interim insurance effective as of the date of the application and terminating at either completion or rejection of the principal policy 3 This statute was renumbered from La R 22 by Acts 2008 No 415 1 eff Jan 1 2009 S 654 4 This statute was renumbered from La R 22 by Acts 2008 No 415 1 eff Jan 1 2009 S 631 7 Although a binder may be sketchy and informal in comparison with the policy contemplated for issuance and delivery in the future it is a contract of insurance in praesenti subject only to the conditions which it itself imposes Generally a binder contemplates a subsequent and more formal agreement and by its nature incorporates the terms of the prospective policy whether those terms are prescribed by law or are part of the customary policy issued by the insurer Thus a binder is a written contract by a duly authorized agent of an insurance company recognizing liability on a forthcoming contract during negotiations for such contract and assuming that a valid or legally operative binder has been executed it is immaterial that a loss covered by the binder occurs before the formal policy of insurance is issued A contract of temporary insurance is binding upon the insurer even though after an accident the insured refuses to take the policy and pay the premium as agreed Footnotes omitted Lee R Russ and Thomas F Segalla 1A Couch on Insurance 3d on Insurance 3d 1 13 1997 Couch To the contrary the jurisprudence has consistently held that a certificate of insurance is typically issued for informational purposes alone and cannot modify the terms of coverage provided in an insurance policy In Citgo the court was asked to determine whether a certificate of insurance issued by a policyholder to an additional insured which purported to extend modify or limit coverage was binding on the original insurer Citgo 951574 at 1013 690 So 2d at 162 163 The certificate contained a disclaimer that it was issued solely for informational purposes and that it did not amend extend or alter the policy coverage s Citgo 951574 at 11 690 So at 162 2d The court looked to the provisions of La R 22 for the scope of its inquiry S 881 Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified extended or modified by any rider endorsement or application attached to or made a part of the policy Citgo 951574 at 13 690 So at 163 The court concluded 2d La R 22 by its clear wording limits our inquiry in this case S 881 solely to the meaning of the terms and conditions of the original policy and any rider endorsement or application A certificate of insurance is not a rider endorsement or application We cannot examine the certificate for purposes of determining if it modifies the terms of coverage because by operation of this statute the certificate cannot amplify extend or modify coverage Citgo 951574 at 13 690 So at 164 The court noted further that even if applicable 2d law allowed it to consider the language of the certificate the certificate disclaimer was s H clear and unambiguous that it did not amend extend or alter the coverage afforded under the policy and that it was issued for informational purposes only Ferguson v Plummer Towing s Id Cf Recovery Inc 98 2894 pp 56 La App 1 Cir 00 18 2 753 So 398 401 citing La R 10 2d S 1307 and holding that a certificate of insurance is prima facie evidence of the genuineness of the facts stated therein if the certificate was issued between the parties to legal action but that a third party may not rely on the certificate to change the coverage provided by an insurance policy Similarly the Certificate Of Liability Insurance issued in this case contains the exact disclaimer as the one in the Citgo case THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER THIS CERTIFICATE DOES NOT AMEND EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW While in an action by Vincent against Williams in connection with the certificate of insurance the certificate would be prima facie evidence of its authenticity with respect to Scottsdale the language in the certificate does not operate to change the coverage provided in the CGL policy issued by Scottsdale See Ferguson 982894 at 5 6 753 So at 401 Accordingly we must look only to the 2d policy in question to determine whether Vincent claims were covered by the CGL policy s thus requiring Scottsdale to provide Vincent with a defense The Insuring Agreement of the CGL policy provides as follows We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies We will have the right and duty to defend the insured against any suit seeking those damages However we will have no duty to defend the insured against any suit seeking damages for bodily injury or property damage to which this insurance does not apply We may at our discretion investigate any occurrence and settle any claim or suit that may result 5 This statute was renumbered from La R S 10 1202 by Acts 2006 No 533 E 1 Furthermore the CGL policy contains the following exclusions 2 Exclusions This insurance does not apply to j Damage To Property Property damage to 1 Property you own rent or occupy including any costs or expenses incurred by you or any other person organization or entity for repair replacement enhancement restoration or maintenance of such property for any reason including prevention of injury to a person or damage to another property s 4 Personal property in the care custody or control of the insured In moving for summary judgment Scottsdale argued that its policy was a CGL policy that did not provide commercial inland marine coverage Scottsdale further asserted that according to Exclusions 0 and 0 the policy specifically excluded 1 4 coverage for property that Vincent owns or leases or property that is in his care custody or control Thus Scottsdale maintained because there was no dispute that the crane was leased to Vincent at the time that it sustained damages these exclusions clearly barred coverage for Vincent claims s s Scottsdale policy is a CGL policy Such policies are designed to protect the insured against losses to third parties arising out of the operation of the insured s business 9A Couch on Insurance 3d 2 129 The damages sought by All Crane do not fit within the coverage of a CGL policy Furthermore based on the clear and unambiguous language of the exclusions in the Scottsdale CGL policy we agree with Scottsdale that this policy afforded no coverage to Vincent for the damages at issue herein As alleged by All Crane in its petition for damages the crane that was damaged was leased to Vincent at all pertinent times hereto There is no claim that Vincent use s of the crane caused any damages to third party property Thus it follows that the 10 exclusion for damage to property rented by Vincent clearly and unambiguously bars coverage for the claims asserted Moreover it is asserted in the petition for damages that the crane was damaged while in the care custody and control of Vincent Therefore the care custody and control exclusion clearly and unambiguously operates to bar coverage as well Further we note that in opposition to Scottsdale motion for summary s judgment Vincent failed to produce factual support sufficient to satisfy his evidentiary burden at trial i that the CGL policy issued by Scottsdale afforded him coverage for e the damage to the crane such that Scottsdale was required to provide Vincent with a defense Accordingly there was no genuine issue of material fact Summary judgment in favor of Scottsdale was warranted CONCLUSION For the above and foregoing reasons we find no error in the trial court ruling s granting summary judgment in favor of Scottsdale and dismissing with prejudice s Vincent claims against Scottsdale Thus we affirm the judgment of the trial court All costs associated with this appeal are assessed against defendant appellant Ricky Vincent dba Tree Surgery by Ricky Vincent AFFIRMED 11

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