Daniel Fouquet VS Daiquiris & Creams of Mandeville, L.L.C., ABC Insurance Company, Bryce Hemstad & XYZ Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 0233 DANIEL FOUQUET VERSUS CREAMS OF MANDEVILLE L ABC INSURANCE C DAIQUIRIS XYZ INSURANCE COMPANY COMPANY BRYCE HEMSTAD Judgment Rendered SEP 1 3 2010 Appealed from the TwentySecond Judicial District Court In and for the Parish of St Tammany State of Louisiana Docket No 2008 14896 Honorable August J Hand Judge Alex J Peragine Counsel for Rebecca R Urland Covington LA PlaintiffAppellant Daniel Fouquet Amos H Davis Counsel for Baton Rouge LA Appellee Defendant Colony Insurance Company Robert A Barnett Counsel for New Orleans LA Appellee Defendant Creams of Daiquiris Mandeville L C BEFORE PARRO GUIDRY AND HUGHES JJ GUIDRY J A bar patron appeals a summary judgment rendered in favor of the bar s liability insurer For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY On or about March 23 2008 Daniel Fouquet was stabbed several times by Bryce Hemstad while a patron at a bar called Daiquiris Creams in Mandeville Louisiana As a result of the incident Mr Fouquet filed a petition for damages against Mr Hemstad Daiquiris Creams Colony Creams of Mandeville L Daiquiris C and their respective liability insurers Colony Insurance Company intervened in the action to assert that it had issued a commercial general liability CGL policy to Daiquiris Creams that was in effect on the date of the incident sued upon In conjunction with its intervention Colony also filed a motion for summary judgment asserting that based on certain exclusions in the CGL policy issued to Daiquiris Creams there was no coverage under the policy for Mr Fouquet claims therefore it was not liable Thereafter Mr Fouquet s amended his petition to add Colony as a defendant in its capacity as the liability insurer of Daiquiris against Daiquiris Creams and to assert additional allegations of negligence Creams Following a hearing on Colony motion for summary judgment the trial s court granted the motion and dismissed Colony from Mr Fouquet suit by a s judgment signed April 16 2009 Mr Fouquet devolutively appeals that judgment ASSIGNMENTS OF ERROR In his brief on appeal Mr Fouquet submits the following assignments of error I The Trial Court erred in not following 11 The Trial Court erred in granting Colony motion for summary s judgment because not all of Mr Fouquet claims in the Petition s the EightCorners Rule and not strictly construing the Policy against Colony 2 are beyond the scope of coverage provided by the Policy SUMMARY JUDGMENT On appeal summary judgments are reviewed de novo using the same criteria that govern the trial court consideration of whether summary judgment is s appropriate Lieux v Mitchell 060382 p 9 La App 1st Cir 12 951 So 06 28 2d 307 314 writ denied 07 0905 La 6 958 So 2d 1199 The motion 07 15 should be granted only if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law La C art 966 Independent Fire Insurance Company v P B Sunbeam Corporation 99 2181 p 7 La 2755 So 2d 226 230 231 00 29 When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial the burden of showing there is no genuine issue ofmaterial fact remains with the party bring the motion See La C P art 966 Buck Run Enterprises Inc v 2 Cs Mapp Construction Inc 993054 p 4 La App I st Cir 2 808 So 2d 428 01 16 431 An insurer seeking to avoid coverage through summary judgment bears the burden of proving some exclusion applies to preclude coverage Lewis v Jabbar 08 1051 p 5 La App 1st Cir 15 So 3d 250 25455 09 12 A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery Facts are material if they potentially insure or preclude recovery affect a litigant ultimate s success or determine the outcome of the legal dispute Smith v Our Lad of Lake Hospital Inc 93 2512 p 27 La 7639 So 2d 730 751 Because it is 94 5 the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case Charlet v Legislature of the State of Louisiana 97 0212 p 7 La App 3 1st Cir 6 713 So 2d 1199 1203 writs denied 98 2023 982026 La 98 29 98 13 11 730 So 2d 934 Moreover interpretation of an insurance policy is usually a legal question that can properly be resolved by means of a motion for summary judgment Miller v Superior Shipyard and Fabrication Inc 01 2683 p 4 La App 1st Cir 02 8 11 836 So 2d 200 203 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 under which coverage could be afforded when applied to the undisputed material facts shown by the evidence supporting the motion Reynolds v Select Properties Ltd 93 1480 p 2 La 4 634 94 11 So 2d 1180 1183 INSURANCE COVERAGE An insurance policy is a contract between the parties and should be construed using the general rules of contractual interpretation If the words of the policy are clear and explicit and lead to no absurd consequences no further interpretation may be made in search of the parties intent and the agreement must be enforced as written La C art 2046 Davenport v Prudential Property Casualty Insurance Co 03 2593 pp 3 4 La App 1st Cir 10 897 So 04 29 2d 98 101 writ denied 04 2900 La 2 893 So 2d 882 Unless the words of 05 4 the policy have acquired a technical meaning they are to be construed using their plain ordinary and generally prevailing meaning See La C art 2047 Bennett v Ragon 04 0706 p 6 La App 1 st Cir 3907 So 2d 116 120 05 24 Moreover as observed by this court in Sensebe v Canal Indemnity Company 091325 p 6 La App Ist Cir 2 35 So 3d 1122 1125 26 writ 10 24 granted 10 0703 La 638 So 3d 358 citations omitted 10 25 An insurer has the burden of proving that a loss falls within a policy exclusion Additionally in determining whether an exclusion applies to preclude coverage courts are guided by the well recognized 4 rule that an exclusionary clause in an insurance policy must be strictly construed Nonetheless an insurance policy including its exclusions should not be interpreted in an unreasonable or strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion DISCUSSION In this appeal Mr Fouquet basically objects to the trial court determination s Creams that two exclusions in the CGL policy Colony issued to Daiquiris completely bar coverage for his claims The two exclusions provide in pertinent part ASSAULT BATTERY OR ASSAULT AND BATTERY EXCLUSION This endorsement modifies insurance provided under the following COMMERCIAL GENERAL LIABILITY COVERAGE PART A SECTION INJURY COVERAGES 1 AND Exclusions PROPERTY COVERAGE DAMAGE A BODILY LIABILITY 2 is amended and the following added Assault Battery or Assault and Battery This insurance does not apply to damages or expenses due to bodily injury property damage arising out of or resulting from I Assault Battery or Assault and Battery committed by any person 2 The failure to suppress or prevent Assault Assault and Battery by any person Battery or 3 The failure to provide an environment safe from Assault Battery or Assault and Battery 4 The failure to warn of the dangers of the environment which could contribute to Assault Battery or Assault and Battery 5 Assault Battery or Assault and Battery arising out of the negligent hiring supervision or training of any person The 6 use of any force to protect persons or property whether or not the bodily injury or property damage or personal and advertising injury was intended from the standpoint of the insured or committed by or at the direction of the insured B SECTION V DEFINITIONS is amended and the following is added 5 Assault means a an act creating an apprehension in another of immediate harmful or offensive contact or b an attempt to commit a Battery Battery means an act which brings about harmful or offensive contact to another or anything connected to another Assault and Battery means the combination of Assault and a Battery WEAPONS EXCLUSION This endorsement modifies insurance provided under the following COMMERCIAL GENERAL LIABILITY COVERAGE PART COVERAGES COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY 2 Exclusions is amended and the following added SECTION I Use of Weapons This insurance does not apply to bodily injury property damage or personal and advertising injury arising out of or resulting from the possession ownership maintenance use of or threatened use of a lethal weapon including but not limited to firearms by any person Mr Fouquet acknowledges that the aforementioned exclusions do bar coverage for some of the acts of negligence that he alleges Daiquiris Creams committed nevertheless he contends that the exclusions do not apply to bar coverage for the following acts of negligence alleged 1 Failure to prevent the number of repeated criminal control incidents at its business 2 Failure to act as a reasonable and or prudent person would under the same or similar circumstances with similar professional responsibility 3 Failure to assist Plaintiff 4 Failure to render first aid and 5 Failure to seek assistance such as by calling emergency services We find the plaintiffs argument to be misdirected due to the fact that he reads the exclusionary language too narrowly and focuses solely on the negligence precluded He fails to recognize that the exclusions bar coverage based not just on on the type of negligence asserted but more specifically they deny coverage for bodily injury stemming from the specified types of negligence In its motion for summary judgment Colony asserted that it cannot be held liable as a matter of law under the undisputed facts of the case for the injuries allegedly sustained by plaintiff Both the assault and battery and weapons exclusions provide tlhis insurance does not apply to damage bodily injury property arising out of or resulting from as prefatory language All the evidence submitted and facts alleged by the plaintiff regarding the injuries he sustained relate to and are a direct result ofthe battery committed by Mr Hemstad Mr Fouquet did not present any evidence or allege any facts to establish he sustained any separate injuries as a result of the alleged acts of negligence specified above Hence as the only bodily injuries alleged are those stemming from the actual stabbing those injuries clearly fall within the ambit of both the assault and battery and weapons exclusions In the absence of some allegations and evidence to establish that Mr Fouquet was additionally damaged or injured as a result of the specifically identified alleged acts of negligence enumerated above the assault and battery and weapons exclusions bar coverage for the bodily injuries claimed by Mr Fouquet CONCLUSION For the reasons stated the summary judgment rendered in favor of Colony Insurance Company is affirmed All costs of this appeal are cast to the plaintiff Daniel Fouquet AFFIRMED 7
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