Denise Breazeale and Thomas Breazeale, Individually and on behalf of the minor child, Thomas Breazeale, Jr. VS Todd A. Tchannen, Sr. and Christina Tschannen Individually and as parents and legal guardian of Joshua Tschannen and ABC Insurance Company

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STATE fJF I OUISIANA COUR E AY FE AL FIRST CIRCL IT NO 2012 CA 1703 DENISE BREAZEALE AND THOMAS BREAZEALE INDIVIDUALLY AND ON BEHALF OF THE MINOR CHILD THOMAS BREAZEALE JR VERSUS T AND C INDIVIDUALLY AND AS PARENTS AND LEGAL T GUARDIAN OF J AND ABC INSURANCE COMPANY T Tudgment Rendered APR 2 6 2013 G i On Appeafl from the 22nd Judicial District Court In and for the Parish of St Tammany State of Louisiana Trial Court No 2011 12856 Honorable Martin E Coady Judge Presiding Allain F Hardin LA Attorneys for Plaintiffs Appellants 1st Eric M Orleans Daigle Denise Breazeale and Thomas Breazeale individually and on behalf of the minar New Orleans LA child Thomas Breazeale Jr New Wayne R Maldonado Matthew J Ungarino Albert D Giraud Attorneys for Defendants Appellees T and C individually and as parents T and legal guardian of J T Metairie LA Michael J Bourquard Slidell LA VJe have altered Yhe caption using initials in lieu of names of defendants to protect appellees the i entity o the minor child involved in t is appeal c Q a t r1G nac v David S Pittman Harry P Pastuszek Jr ttozriey ts foa Intervenor Appellant 2nd St Tamznany Parash School Board Faith E Richard Covington LA Walker K Marjorie Jamison B Breaux III Attorneys f Defendant or Appellee rs Banke peciaity Insurance Company Lafayette LA BEFORE Vb C c A HIGGINBOTHAM JJ HIPPLE J LLi TI N iDf 2 HIGGINBOTHAM J This is an action For personafl injuries sustained by a special education teacher who was allegedly attacked by a terryear peczai student old education The teacher seeks recovery oz he negli nc4 i or the minor erjt ritentiana acts s child parents and t4 rri r wi tkA ren are c li The en r in ts usiy ari dble trial courc granted surr judgz marv ntit faiu ft re l e ts a insurer s r vn eca based upon an intentional act exclusion c in the homeowner policy For ntained s the following reasons we affirm ACTS F Denise Breazeale and her husband Thomas Breazeale both individually and on behalf of their minar child Thomas Breazeale Jr the Breazeales plaintiffs herein filed the instant lawsuit saeking to tecover da for personal injuries aages allegedly sustained by M Br wh she wa physically assaulted by J a azeale r T old year ten auristic student The lx hap at the Lake Harbor Midd9e cident exied School in Mandeville Louisiana ust u t 2 2014 s T 7 parents T and T C both individualiy and as the pare and legal g of J were named ets ardians T as defendants together with Barakers Specialty Insurance Company Banlcers in its capacity as the homeowner insurer of J parents The St Tammany Parish s s T School Board School Board interraned in the lawsui to recover workers compensation benefits and medical expenses paid to and on behalf of Ms Breazeale adopting all allegations ofthe Breazeales pe for damages ition 2 To protec the identity of the minor child involved in Yhis appeal we will use i rather than titials full name of the minor child nts nd the child throughout this opinion See Llnlform Rules spar Couzts of Appeal Rule 5 J official diagnosis is Autis Speciram Disorder 2 I s m Bankers was formally named as a defendant in the Breazeales first suppleniental and amending petition f on June 6 2011 The Bankers homeowner policy issued to J parents led s s T provided personal liability c and medical payments coverage for claims made or suits verage brought against an insured An insured includes residents of the household who are relative or are under the age of 21 and in the care of the named insured 3 In the petition Ms Breazeale Yieged thaY J parents were vicariously T or and strictly liable far the violent actions of their inor child who injured Ms Breazeale by hitting kicking scratching pulling grabbing and pushing her into the wall and floor while at school causing her physical and emotional injuries The petition alleges that J actic canstituted negligence and alternatively s T ns or an intentional tort Additionally the petirion alleg that J parents were s s T negligent in failing to obtain proper treatment programs and medication for J T failing to warn of J propensity for physical contact and failing to keep J s T T home from school when he was agitated Initially on June 23 2011 J parents and Bankers filed a joint answer s T generally denying all of the Breazeales allegations except to admit that Bankers issued a policy of insurance that was the best evidence of its contents terms and limitations J parents ar Bankers also served initial discovery requests on the s T d Breazeales But then on August 8 2011 afrer filing a motion and order to substitute separate counsel of record Bankers filed a supplemental and amending answer solely on its behalf asserting that the poiicy of insurance issued to J s T parents excluded coverage for intentional acts Bankers filed a similar response to the School Board petition for intervention asserting the coverage defense 7 s s T parents filed a separate answer to the Schooi Board intervention on August 18 s 2011 the same day that Bankers issued by certified mall a reservation rights of letter to s T J parents The letter advised J s T parents that Bankers would continue to investigate coverag issues pursuant to a reservation of rights because some of the lawsuit allegations may not meet policy definitioris and some policy s exclusions may apply Thereafter Bankers filed a motion for suminary judgment on September 21 20ll Bankers sought dismissal on the ground that the homeowner insurance s policy issued to 7 parents excludes from coverage any liability arising from ihe s T 4 I intentional acts on the part of an insured the intentional acts exclusion including the related claim of the School Board for recovery of workers compensation and medical benefits paid to ox on behalf oi Ms Breazeale In support of its motioxi Bankers att a certified copy of the insurance policy as ched an exhibit with references to the p endorsemer that ma s icy ifed the intentional acts exclusion rs Bank also attached ex frorn IYis Breazeale erpts s deposition showing that J ten attack should be characterized as an s T minute intentional act which is specifically excluded by thepolicy s T J parents opposed Bankers motion for summary judgment arguing that by initially answering the Breazeales lawsuit jointly on behalf of Bankers and s T J parents Bankers conduct resulted in a waiver of coverage defenses and created a conflict between J parents and their attorneys who initially s T represented both Bankers and 3 parents In support of their opposition J s T s T parents attached the reservation letter they received from Bankers rights of affidavits by J parents and a letter from the initiai counsel or record informing s T s T J parents of the insurance coverage issue Alternatively J parents argued s T that Bankers intention alacts exclusion contravenes the public policy of the State of Louisiana s T J parents cited a directive issued by th Commissioner of Insurance on June 9 2000 known as Directive Number 152 which they attached to their opposition The Breazeales also opposed Bankers motion for summary judgment for the same reasons urged by J parents i s T e that the intentional acts exclusion is against Louisiana spublic policy and thaY Bankers waived its coverage defense by not properly advising notifying and protecting the interests of its insureds The Breazeales did not offer any evidence in support of their opposition After a hearing the trial court took the matter under advisement before issuing reasons for judgment on May 11 2012 The trial court signed a judgment 5 on May 31 2 granting summary judgment in favor of Bankers and dismissing 012 all of the Breazeales claims as well as the claims of the School Board against Bankers J parents did not file an appeal but the Breazeales and the School s T Board both appealed Essentially both appellants argue that the zrial court erred in granting summary judgment in favor of Bankers because Bankers knowingly relinquished and vaaived its right to denv coverage to its insureds when it initially defended the lawsuit without retaining conflict counsel for J parents s T Additionally the Breazeales assert that the trial court erred in failing to find that the intentional acts exclusion n the Bankers policy contravenes the public policy of the State of Louisiana and that it violates a directive of the Commissioner of Insurance SUMMARY JUDGMENT 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 Johnson v Evan Hall Sugar Co Inc 2001 La App lst Cir 12 836 So 484 486 op 2956 02 30 2d Summary judgment is properly 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 materia fact and that the mover is entitled to judgment as a matter of law La Code Civ P art 966 Summary judgment is favored 2 B and is designed to secure the just speedy and inexpenslve determination of every acrion La Code Civ P art 966 T v Fina Oil and Chemical Co 2 A homas 0338 2002 La App lst Cir 2 845 So 498 501 03 14 2d 502 On a motion for summary judgment the burden ofproof is on the mocer 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 s action or defense be negated Instead the mover must point out to the court that 6 there is an abaence of factual su f on ar iore elennents essential to the port or adverse rorA s party claim act or defens hereaiter th adverse party must I produce factual evidenca su to establisli that I wiil be able to satisfy his cienr f ce evidentiary hurden Iproof at tri lAi t adv x fa to r this burden e e h lr y ls ee there is r gznuir s of iz ac ac e i is vr t summary e ue ia e er titred c judgment La C Civ ode art y RQble v s2Q02 6fC ile Ioi on 854 La App lst Cir 3 844 So 3 3 03 28 2d ii In determining whether summary jud is ppropriate appellate courts ment review evidence de novo under Yhe same crlteria that govern the trial court s determination of whether summary judgment As appropriate Ailen v State ex rel Ernest N Morial New Orleans Exhibition Hall Authority 2002 La 1072 03 9 4 842 So 373 377 Because it i the applicable substantive law that 2d determines materiality whether a partica fact in daspute is rcan be seen lax aterial only in light of the substantive Iaw aY thz case Foreman v Danos and plicable Curole Marine Contractors MQ38 pp lst Cir 9125i98j 722 So Ince La 2d I 4 writ denied 98 La G 73 o 63 A sumrnaz 2743 9 I8 d rjudgnnent declaring a lack of co under ri in policy znay nc be rendered unless erage e ans u t there is noreasonal i of the pvlicy eta ap to the undieputed leinterpretatio d l material facts shn by the evidence suppar tn motion under which coverage vn Ying could be afforded W v LaFleur 493 So 600 605 La 1986 An esterfield d insurer seekin to avoid coierage thgough umriaary judgment must prove that some exclusion applies ta preclaxde av Tackson v Frisard 96 La rage 0547 App lst Cir 12 6gS So 622 529 v denied 97 9 La 96 20 2d its QI93 0201 3i14197 689 So 1386 1387 2d I LAW tiD AN SIS LS Waiver The Breazeales and the Scho Boara have bot assign error to the trial Y l Ad s court grant of s unmary merAt jud arguing tliat ankers waived its righ4 to deny coverage to J parents because F3ankers nitaally dlefended the awsuit without s T retaining separate conflict c for J parents The Breazeales the School wnsel s T Board and J parents all raised the wazver issue in their oppositions to s T Bankers motion for summary judgr But tlae tz court reasons for judgment leni ial s and the summary judgment were s wit nt rl 1respect to wai Ordinarily silence er in a written judgment as to any matter 2hat vvas pPaced before the trial court is deemed a rejection of that demand o ae is Hayes Louisiana State Penitentiary 2006 La App l Cir kS 970 So2d 547 554 n 9 w 0553 t 01 15 denied 2007 La l So 7 tzus we deem ihe trial court 2258 2Si08j 973 2 S s silence on the waiver issue as a denial of that contention T J and his parents as the insureds under Bankers policy are actually the most appropriate parties to c about th trial eourt denial of the waiver omplain s issue but they have not filed an a from th Trial court grant of summary peal s judgment in favor of Bankers However we n thai turder Louisiana direct te s action statut La R 22 the Breazeal have star along with the S 1249 F31 s ng ci insureds to be f appris f any aifirmatiy aefenses su as coverage ully d h defenses See Fiiser v Rajki 9 L App 1s Ci 9 00 So 2208 SOi 2d 1302 Thus we ind that the w issu is properl before use iver 4 Waiver occurs when there is an existing right knoivledge of its existence and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished A waiver may apply to any provision of an insurance contract even though this may have the effect of bringing within coverage risks oxiginally excluded or not covered Steptore v Masco C Co Ine 93 La 8 onst 2064 94 18 643 So 1213 1216 Emery v Progressive Cas Ins Co 201Q La App lst Cir 2d 0321 10 10 949 So3d 17 21 8 I The issue of waiver is complicated because it is interwoven with an insurer s duty to defend its insured If the policy calls for a defense of the claim an insurer has the obligation to provide a defense to its insured even if ultimately the insurers may have no liability under the policy Dugas Pest Control of Baton Rouge Inc v Mutual Fire Marine and Inland Ins Co SO4 So 1051 1053 La App lst 2d Cir 1987 To pratect its own interest an insu can simultaneously provide its er insured with a defense and contest coverage with its insured Id 504 So at 2d 1054 If an insurer has knowledge of facts indicating non and voluntarily coverage assumes the insured defense without obtaining a non agreement to s waiver reserve its rights the insurer effectively vaives all such policy defenses Peavey Company v M ANPA 971 F 1168 1175 Sth Cir 1992 V 2d notice of intent to avail itself of the defense of non must be coverage The insurer s timely Id For Bankers claim ofnon to be plausible Bankers must show that it waiver issued its reservation letter to J parents and employed separate rights of s T counsel within a reasonable time after it was informed of the claim against its insureds See Emery v Progressive Cas Ins Co 2010 La App lst Cir 0327 10 10 9 49 So3d 17 21 Dugas Pest 2d Control 504 So at 1054 It is undisputed that Bankers provided separate counsel for J parents from fhe s T moment that Batxkers asserted its coverage defensa in a supplemental and amending answer that was filed approximately six weeks after the initial jointly filed answer Shortly thereafter within ten days Bankers issued a reservation of rights letter to J parents advising them of the coverage defense On the same s T 5 A reservation letter has been held to be a sufficient non agreement See rights of waiver E H T Ins Co v Larsen Intermodal Services Inc 242 F 667 675 th Cir 2001 A 3d waiver non agreement or reservation letter znade between the insurer and the insured rights of is a document whexeby the insurer undertakes the insured defense with the stipulation that the s insurer does not waive its right to deny coverage See Vargus v Daniell Battery Mfg Co Inc 93 La App lst Cir 12 648 So 1103 1106 W v Yeager 2002 2282 94 29 2d A T 881 La App 3d Cir 12 832 So 1217 1219 Cassey v Stewart 31 La App 2d Cir 02 ll 2d 437 99 20 1 727 So 655 658 n 3 writ denied 99 La 4 743 So 209 Even 2d 0811 99 30 2d though initially the insurex may provide the potential insured with a defense against the claim this is not an admission that the policy provides coverage W 832 So at I219 A T 2d 9 i date of that letter J parents filed a sepaxate answer to the School Board s T s intervention tkirough the same counsel that had been provided for them by Bankers Since the Breazea and the School Board are seeking to avoid the es application of the intentiona ac exclusion they k the burden of roving that s ad Bankers waived its right to assert its policy exclusion See L v Chandler T 417 40 La App 2d Cir 12 917 So 753 757 But there is no evidence OS 14 2d in the record that J parents legal representatipn was ever compromised that s T s T J parents were prejudiced in any way that J parents relied on any s T representation by Bankers that there definitely was insurance coverage for the Breazeales claims or that Bankers assertion of its coverage defense policy exclusion was untimely When J parents filed their separate answer to the s T School Board intervention the did so with knowledge of Bankers coverage s defense as clearly set forth in the reservati I that was sent to them rights of n tter by certified mail Thus by filing this sepatate answer J parents implicitly s T agreed that Bankers had reserved its coverage defense See 15 William Shelby McKenzie and Practice H Alston Johnson III Louisiana Civil Law Treatise Insurance Law 7 at 643 4th Ed 2012 Therefore our de novo review of the record reveals nothing that would create a genuine issue of material fact as to waiver The Breazeales and the School Board failed to come forward with evidence sufficient to support a finding that Bankers waived its coverage defense Accordingly we find that the assignments of error regarding waiver are without merit and the trial court rejection ofthe waiver issue was pro s per Intentional Acts Exclusion The other issue presented in this appeal is whether in light of the undisputed facts Bankers is entitled to judgment as a matter of law based upon the intentional acts exclusion contained within its policy The Breazeales maintain that the legal 10 question posed is whether it is agai the public policy of tktis State to allow a st s homeowner insurer to exclude coverage tor damages resulting from parents vicarious liability for the inte acts of their minor child tional In Doerr v Mobil Oil Corpe 2000 La 12119 774 So 119 the 0947 00 2d Supreme Court suecinctly stat the 1aw pertaining to insurance contracts as d follows The interpretation of an insurance contract is nothing more than a determination of the common intent of the parties he T initial determination of the parties intent is found in the insurance policy itself In analyzing a policy provision the words often being terms of art must be given their technical meaning When those technical words are unambiguous and the parties intent is clear the insurance contract will be enforced as written If on the other hand the contract cannot be construed simply based on its language because of an ambiguity the court may look to extrinsic evidence to determine the parties intent When determining whether or not a policy affords coverage far an incident it is the burden of the insured to prove the incident falls within the s policy terms On the other hand the insurer bears the burden of proving the applicabiliry of an exclusionary clause within a policy Importantly when making this determination any ambiguities within the policy must be constzued in favor of the insured to effect not deny coverage Id 774 So at 124 citations omitted The determination ofwhether a contract 2d is clear or unambiguous is a question of law Watts v Aetna Cas and Sur Co 574 So 364 369 La App lst Cir writ denzed 568 So 1089 La 1990 2d 2d Subject to the rules of interpretation it is well that an insurer may limit settled liability and impose reasonable restrictions upon its policy obligations provided that such limitations do not conflict with statutory provisions or public policy Cutsinger v Redfern 2008 La 512 So 945 949 2607 22109 3d The applicable exclusionary clause as modified by a special provision endorsement for Louisiana dated March 30 2010 is contained in the Bankers policy and provides in pertinent part as follows SPECIAL PROVISIONS LOUISIANA THIS ENDORSEMENT CHANGES THE POLICY PLEASE READ ITCAREFULLY ll i SECTION II AI3ILITY aR LI OV 11GFS SECTION II EXCI1tiSIONmS E Coverage E Personal Liability an Coierage F Med cal Paymenits ta Others Coverage e ra Cov F Medi alayments E I a n ersvnal L l a il a to thers do t appJ yto ph Paragra 1 Expe or Intended In i deiet i axl form ted jury d s and replaeed by the foliowing We do not cover any bodily iniury or property damage intended by or caused by or originating from or in onnection to or which may be expected to result fi the intentional or criminal acts or om omissions of any insuredperson Thas clusion applies even if a Such insured peraon lacks the mental capacity to govern his or her conduct b Such bodily inju or property damage is of a different kind ry or degree than that intended or reasonably expected or c Such bodily ixijury or property damage is sustained b a r different person than th intended or reasonably expected at This exclusion applies regardiess of whether or not such insured persen i actualIy charged wifih qr convicted or a c s me This exclusion applies rsgarciless oiF tk umber of iia tl e sureds number of claims made or the gof persons injured umber Italicized emphasis supj Aia This exclusionary clause for the basrs o1 the triaY court grant of rned summary jud in this ase The language is ahnos7 identical ta language in an nent exclusionary clause that we c en dane flr Reinhardt v Barger 200i nsidered 2363 La App 1st Cz 4 15 Se 122 1Z writ denied 2009 La 29109 3d i 1786 20I09 11 2S So 811 In Reinhardt this court w unable ta render a majority 3d s opinion to reverse or modify the triai court juclgment thus the judgmznt of the s trial court in hat case was effectively affirmed in upholding the validas of the y intentional act exclusion by surnmary judgment Id 1S 3d So at 122 In Reinhardt the sole issue was whether the intenti act exclusion contained nal within the provisions o a homeowner policy that purported to exclude c s ge ver for damages resulting from a parent vicarious iiabzlity far the ir aets of s tentional 12 fheir minor child contravened the lic aelic of the State of Louisi as stated y na in Commissioner of Insurart Dir Numl 152 Id 15 So at 124 and e ctive er 3d 127 Pettigrew J concurring Thzs issue is again squareiy presented by this appeal Directive Nunn 152 was i the C f Insurance in er suEe b issioner ornn response to this cuurt decision in Baugh v Ray 97 La App lst Cir s 5 26 99 5 751 So 888 per Guriam on rehearing where this court determined Yhat 2d the law does not mandate insurance coverage far vicarious liability arising froni the acts of one children We further determined in Baugh 751 So at 8 s 2d L 9 that thexe is ro state law or publie pol prohibiting a lowEx limit for arental cy vicarious Iiability e S Reinhardt 1S S at 127 3d Baugh has n i ever een judicially overruled or superseded by leet islative By issuing Directive Number I52 th Commissioner of Insurance expressed e concern over the limitations of vicarious parentalliability in homeowners policies and directed insurers to madify the policy languaga by deleting the exclusion rr Directive Number 152 states ipertir part t en When onsumers pur h hase meo insurance their intent s vner purchase brQad package p to proiect themsel from a licy broad range of isks that may arase ut of hom and ownership is to personal liability children is t nc a A li aditation for liabiliry aovexage related t reasonable expectation of the policyholder No homeowner would kno purchas a homeowner policy vangiv s limiring coverage far their iiability with respect to their children 6 Only a partial copy of Directive Num 152 issued by the Commissioner of Ia on June er surance 9 2000 is contained within 1he re of this matter However because Direetive Number 152 ard is a znatter of public record and has eeen considered by thls court on nurnerous occasions we find that the Breazeales motion seeking leave to attach Direotive Numbex 152 and a new section to their brief is unnecessary The we deny the Breazeales motion efore The Breazeales argue that a different result from Reinhardt affecr upholding tha validity vely of the intentional acts exclusion should take place under the facts presented in the case sub judice because the ianderlying facts in Iteinhardt did not involve the mental capaciYy of the minor We reject this reasoning however because the exciusionazy language in both cases specifically applied even if uch red s ins persan iacks the znental capacity to govern his or her conduci See Kimble on behalf of Dedon v Allstate Ins Co 97 La App 1 st Cir 0481 8 4710 So 1 i46 1148 writ denied 98 La 10 726 So 07 where 2d 1149 1801 98 16 2d we upheld a siznilar exclusionary clause in a case where the insured lacked the mental capacity te govern his conduct and we feund no violation of public policy 3 BECAUSE CHARGED THE WITH DEPARTiVIENT TF I9UTY OF OF INSiJRANCE REGULATiNG IS THE BUSINESS OF INSLJRANGE IN THE PUBLIC INTEREST THE DEPARTMENT OF INSURANCE VIEWS THE USE OF ANY TYPE OF LIMITATION CLAUSE IN A HONIEOWNER SPOLICY WHICH RESULTS IN LIMITING I LI COVERAGE HE BILITY OF AN INSU FOR PAREIvTTS VICARIOUS LIABILITY FOR RER ACTS OF THEIR DREN CHII IS AGf1INST THE PUBLIC INTEREST Property and Casualty insurers whose policies contain a limitation of vicarious parental liability in their homeowner spolicies endorsements or exclusions are hereby directed to modify their contracts by submitting a revised policy form or an endorsement deleting the exclusion The Breazeales urge us to find that based on Directive Number 152 public policy dictates that the intentional acts exclusion should not apply However this court has previously held that we are not bound by the opinion of the Commissioner of Insurance with respect to whether a policy provision violates public policy P v S 2007 La App lst Cir 7 993 So D L W 2534 08 21 2d 240 248 writ denied 2008 La 2 999 So 1146 It is the job of 2770 13109 2d the courts to resolve disputes over insurance coverage See Doerr 774 So at 2d 134 See also La Const art V 1 The opinion of the Commissioner of Insurance is persuasive but not binding See Reinhardt 15 So3d at 131 and 132 Kuhn J concurring and Parro J concuning citing Doerr 774 So at 134 2d We cannot allow the Commissioner to usurp either the legislative or judicial role by issuing a directive that constitutes an unauthorized exercise of legislative and or judicial power Id 15 So3d at 131 133 Kuhn concurring and Parro J and J concurring The duty of the Commissioner is to administer the provisions of the Insurance Code La R 22 Louisiana Revised Statute 22 gives the S 2 1 A 11 Commissioner authority to promulgate rules and regulations necessary for the implementation of the Code Reinhardt 15 So at 132 Parro J concurring 3d The Commissioner is not the final arbiter for the interpretation and reconciliation 14 of the Code and insurance policy language That role is constitutionaliy assigned to the judiciary Id Because there is no ambiguity in the policy language at issue its words should be given effect Additionally in the absence of a conflict with a statute or public policy insurers have the same rights as individuals to limit their liability and impose whatever conditions they desire upon their obligations Id 15 So3d at 131 and 132 Kuhn J concurring and Parto J concurring citin Sims v 133 Mulhearn Funeral Home Inc 2007 La 5 956 So 583 595 0054 07 22 2d Because the contract of insurance at issue unambiguously excludes coverage for the intentional or criminal acts of any insured person even if the insured person lacks the mental capacity to govern his conduct we affirm the decision of the trial court to uphold the exclusionary language in Bankers policy CONCLUSION Accordingly we affirm the udgment of the trial court granting Bankers Specialty Insurance Company smotion for summary judgment and dismissing all claims against Bankers Specialty Insurance Company with prejudice Costs of this appeal are equally assessed to plaintiffs st appellants Denise Breazeale and 1 Thomas Breazeale and intervenors appellants St Tammany Parish School 2nd Board MOTION DENIED JUDG AFFIRMED VIENT g In determining the meaning of words of an insurance policy the words and phrases used in the policy should be construed using their plain ordinary and generally prevailing meaning unless the words have acquired a technical meaning See La Civ Code art 2047 Cadwallader v Allstate Ins Co 2002 La 6 848 So 577 580 When the meaning of the 1637 03 27 2d words is clear the court should look no further in determining the intent of the parties Norfolk Southem Corp v California Union Ins Co 2002 La App lst Cir 9 859 0369 03 12 2d So 167 189 writ denied 2003 La 12 861 So 579 742 2 03 19 2d 15 DENISE BREAZEALE AND THOMAS BREAZEALE INDNIDUALLY AND ON BEHALF OF THE MINOR CHILD THOMAS JR BREAZEALE STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT VERSUS T AND C INDIVIDUALLY T AND AS PARENTS AND LEGAL GUARDIAN OF J AND ABC T INSURANCE COMPANY 7 T NUMBER 2012 CA 1703 Whipple C concurring J I respectfully concur in the result which is legally correct However for the reasons set forth in Judge Pettigrew sconcurring opinion in Reinhardt I again find that this is a matter that cries out for and warrants legislative action to protect the public from a virtually useless insurance policy See Reinhardt v Barger 2007 2363 La App l Cir 4 15 So 3d 122 125 writ denied 2009 09 29 129 1786 La 11 25 09 20 So 3d 811

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