Troy Frazier As Curator for The Interdict Eldridge Frazier VS Louisiana CNI, L.L.C., f/d/b/a Shay Community Homes, d/b/a Southpark Home and d/b/a Goodwood Group Home
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0129 TROY FRAZIER AS CURATOR OF THE INTERDICT ELDRIDGE FRAZIER VERSUS LOUISIANA CNI LLC FDBA SHAY COMMUNITY HOME DA SOUTHPARK HOME AND DBA B GOODWOOD GROUP HOME Judgment Rendered June 11 2010 On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 542 966 Honorable Todd W Hernandez Judge Presiding James R Clary Jr Baton Rouge LA Attorney for Plaintiff Appellant Troy Frazier as Curator for the Interdict Eldridge Frazier Peter S Koeppel Attorneys for Defendant Appellee Michael L Martin Lexington Insurance Company New Orleans LA BEFORE CARTER C GUIDRY AND PETTIGREW JJ J CARTER C J The plaintiff appellant Troy Frazier as curator for his interdicted brother appeals an adverse partial summary judgment in favor of the defendant Lexington Insurance Company finding no insurance coverage for the interdict personal injury claims asserted against Lexington insured s s Louisiana CNI LLC the owneroperator of a group home in which the interdict resided For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY The interdict Eldridge Frazier is a profoundly mentally retarded adult man who was institutionalized at the age of five or six and has resided since that time in various group homes for the mentally handicapped Eldridge is extremely limited in his ability to communicate relying entirely upon the staff of the various group homes where he has lived for his complete custody supervision and care In April 2004 Eldridge was diagnosed with Human Immunodeficiency Virus HIV that had developed into Acquired Immune Deficiency Syndrome AIDS It is undisputed that Eldridge was most likely exposed to HIVAIDS through non consensual sexual contact while a resident at one of the group homes owned and operated by defendant Louisiana CNI LLC LCNI or its predecessor Community Network Inc sometime in the midtolate 1990 and definitely prior to s October 2000 In 2005 Eldridge family sought and was granted the interdiction of s Eldridge with his brother Troy Frazier designated as curator On July 18 2005 Troy brought suit for damages on behalf of Eldridge hereafter we 1 LCNI bought the group homes from Community Network Inc in 1999 2 refer to the plaintiffappellant as the Fraziers alleging that LCNI had breached its duty of custody and care owed to Eldridge causing him to suffer a permanent debilitating and potentially fatal personal injury After the Fraziers filed multiple amending petitions naming additional defendants s LCNI liability insurer Lexington Insurance Company Lexington filed two separate motions for partial summary judgment In its motions Lexington contended that the Commercial General Liability CGL Liability SML Social Service Policy and the Sexual Misconduct Policy it had issued to LCNI specifically excluded coverage for Eldridge alleged injury Lexington primarily relied on the s undisputed fact that the alleged sexual misconduct that caused Eldridge s eventual diagnosis of AIDS in 2004 occurred years prior to the January 14 2003 retroactive date in both of the insurance policies it had issued to LCNI Lexington also pointed out specific exclusions in the CGL policy that precluded coverage for 1 sexual misconduct 2 injury arising out of based upon or attributable to the transmission of AIDS and 3 any act error or omission in the furnishing of professional services The Fraziers opposed the motions contending that LCNI negligently breached its duty of care owed to Eldridge by failing to take actions within the policy periods that would have resulted in the discovery and prevention of ongoing sexual misconduct directed toward Eldridge as well as Eldridge being diagnosed and treated for AIDS at an earlier date On July 15 2009 the trial court issued reasons for granting smotions for partial summary judgment and dismissing all claims Lexington 3 against Lexington The trial court found that Lexington SML policy only s provided coverage for insured events taking place after January 14 2003 the policy retroactive date The trial court also found that the SML policy s provided that in the event one or more claims are made which allege multiple acts of sexual misconduct to any one victim coverage is provided only if the first such alleged act of sexual misconduct occurs after the retroactive date The trial court further reasoned that because the expert testimony clearly established that Eldridge was definitely HIV positive in October 2000 the SML policy did not provide coverage because the first such alleged act of sexual misconduct clearly did not occur after the policy s January 14 2003 retroactive date Similarly the trial court found that Lexington CGL policy s specifically and unambiguously excluded coverage for 1 bodily injury which occurred prior to the retroactive date of January 14 2003 2 sexual misconduct committed by any insured or by any person for whom the insured is legally liable 3 bodily injury arising out of based upon or attributable to the transmission of or infection caused by the transmission of AIDS however caused and 4 liability arising out of any act error or omission in the furnishing of professional services Finally the trial court concluded that the CGL policy was not intended to provide coverage for the alleged negligent act of failing to have Eldridge diagnosed with AIDS or any ofthe neglect alleged by the Fraziers After their motion for new trial was denied the Fraziers appealed asserting that genuine issues of material fact remain regarding the breach of 2 A final judgment was signed in accordance with the trial court reasons on November s 23 2009 El s LCNI duty to properly care for Eldridge during Lexington policy s periods and further that the breach of the duty to care is independent and separate from the original sexual misconduct that caused Eldridge s transmission or infection with AIDS Lexington sresponse is that all of the Fraziers claims for damages arose from allegations of non consensual acts of sexual misconduct which led to the transmission of AIDS and which was perpetrated against Eldridge prior to the retroactive date of both insurance policies Consequently Lexington maintains that any claim for damages connected with the Fraziers allegations of negligent breach of the duty to properly provide for Eldridge scare are clearly and unambiguously excluded from coverage LAW AND ANALYSIS Appellate courts review summary judgments de novo under the same criteria that govern the trial court consideration of whether summary s judgment is appropriate Gonzales v Kissner 08 2154 La App 1 Cir 09 11 9 24 So 214 218 3d Summary judgment is appropriate if the pleadings depositions answers to interrogatories admissions and affidavits in the record show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law LSAC art 96613 P C Gonzales 24 So at 217 Because it is the applicable substantive law that 3d determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case Gonzales 24 So at 218 3d On a motion for summary judgment the burden of proof is on the mover If the moving party will not bear the burden of proof at trial on the matter that party burden on a motion for summary judgment is to point out s 5 an absence of factual support for one or more essential elements of the adverse party claim action or defense Thereafter if the adverse party s fails to produce factual support 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 and the mover is entitled to summary judgment LSAC P C art 966C 2Robles v ExxonMobile 02 0854 La App 1 Cir 3 03 28 844 So 339 341 2d Interpretation of an insurance contract is usually a legal question which can be properly resolved within the framework of a motion for summary judgment Waguespack v Richard Waguespack Inc 06 0711 La App 1 Cir 2 959 So 982 984 07 14 2d 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 material facts shown by the evidence supporting the motion under which coverage could be afforded Reynolds v Select Properties Ltd 93 1480 La 4 634 So 1180 1183 Doe v 94 11 2d Breedlove 04 0006 La App 1 Cir 2 906 So 565 570 05 11 2d An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts Doe v Breedlove 906 So at 570 Further an insurance policy should not be 2d interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion Id An insurer has the burden of proving that a loss comes within a policy exclusion Id We have thoroughly reviewed the evidence in the record and agree with the trial court conclusion that summary judgment was appropriate in s M this case In support of its motions for summary judgment Lexington submitted evidence that both of the policies it issued to LCNI excluded coverage because the alleged injury occurred before the retroactive date of the policies It was undisputed that Eldridge was subjected to sexual misconduct and contracted HIV that eventually led to AIDS sometime prior to October 2000 Both of Lexington policies provided a retroactive date s of January 14 2003 on the declarations page and the policy language specifically stated that the policies did not apply to bodily injury or an insured event that occurred before the retroactive date The CGL policy goes on to explain that a claims for damages because of bodily injury ll to the same person including damages claimed by any person for care loss of services or death resulting at any time from the bodily injury will 3 Copies of both of the Lexington policies were admitted into evidence at the hearing on the motions for summary judgment and they were attached to and filed in support of smotions Lexington 4 This undisputed fact was established by the deposition testimony of the Fraziers expert in the area of infectious diseases and HIV AIDS related infections Dr Waref Azmeh which was attached to and filed in support of Lexington motions for summary s judgment 5 Page 1 of the CGL policy provided in pertinent part SECTION 1 COVERAGES A COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY 1 Insuring Agreement a This insurance does not apply to bodily injury or property damage which occurred before the Retroactive Date if any shown in the Declarations Page 1 of the SML policy provided in pertinent part I INSURING AGREEMENTS A 2 COVERAGE This Policy applies only if b The Insured Event out of which the Claim arises takes place or commences after the Retroactive Date 7 be deemed to be one claim and to have been made at the time the first of those claims is made against any insured Likewise the SML policy explicitly states that a Claims arising out of one Insured Event shall be ll considered to be one Claim and shall be deemed to be made at the time the first of such Claims is made 7 The SML policy further provides that i n the event one or more Claims are made which allege multiple acts of Sexual Misconduct to any one Victim coverage is provided only if the first such alleged act of Sexual Misconduct occurs after the Retroactive Date Language in an insurance policy which is clear expresses the intent of the parties and does not violate a statute or public policy must be enforced as written See Livingston Parish Sch Bd v Fireman sFund Am Ins Co 282 So 478 481 La 1973 Moreover insurers have the right to 2d limit liability and enforce conditions or limitations Anderson v Ichinose 98 2157 La 9 760 So 302 306 99 8 2d Limitations based upon a s policy retroactive date have been specifically upheld in Louisiana jurisprudence See Guidry v Lee Consulting Engineering Inc 06 279 La App 5 Cir 10 945 So 785 791 06 31 2d The Fraziers were required to come forth with evidence to support their allegations that Eldridge damages for bodily injury occurred after the s retroactive dates of Lexington policies s affidavit of Dr Paul Dammers a The Fraziers argue that the clinical psychologist and 6 The limiting language is found on page 1 of the CGL policy in the Insuring Agreement section paragraph a and on page 1 of the SML policy in the Insuring ii Agreements section parts C and D 7 The Definitions section on page 4 of the SML policy defines Insured Event as follows Insured Event means an act of Sexual Misconduct or a series of related acts of Sexual Misconduct against any one Victim by an Insured while performing duties s related to their employment or in the case of Volunteer or Member while s s participating in activities sponsored by Named Insured H neuropsychologist establishes that isolated incidents of sexual misconduct against Eldridge also occurred during Lexington policy periods However s even if that issue of fact could be established it is not material to s Lexington coverage defense that the bodily injury and insured event is or deemed to have occurred at the time of the first of such sexual misconduct which was before the retroactive date of either policy And as for the Fraziers argument that LCNI breached its duty of care owed to Eldridge during the policy periods and that Eldridge injuries manifested during the s policy periods we again find that without the initial acts of sexual misconduct leading to Eldridge eventual diagnosis of AIDS there is no s damage The Fraziers claim that LCNI negligently breached its duty of care in Eldridge AIDS diagnosis and his treatment was not independent from s the initial acts of sexual misconduct that caused Eldridge to be exposed to HIVAIDS Without the initial underlying sexual misconduct there would have been no bodily injury and obviously no basis for a suit against LCNI for negligence Thus all of the claims for damages arose out of events that are clearly excluded from coverage under the express language in the two Lexington policies because the injury causing event occurred prior to the retroactive date in the policies Therefore we find no genuine issue of material fact and Lexington is entitled to summary judgment as a matter of law 8 A material fact is one whose existence may be essential to a cause of action See Champaigne v Ward 03 3211 La 1 893 So 773 777 05 19 2d 9 Because the bodily injury event occurred prior to the retroactive date in the insured Lexington policies it is unnecessary to analyze the remaining possible policy exclusions 0 CONCLUSION The judgment of the trial court granting Lexington motions for s partial summary judgment and dismissing the Fraziers claims against it is affirmed Costs of this appeal are assessed to Troy Frazier as curator of the interdict Eldridge Frazier AFFIRMED 10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
