Kevin O. Ainsworth Individually and As Administrator of the Estate of His Minor Children Addison Ainsworth and Austin Ainsworth and Paulette Ainsworth Individually VS Tri Star Builders, L.L.C., The Maryland Casualty Insurance Company, David Pascal Law, Thomas (Tommy) Wainwright, Thomas Wainwright Plumbing Company and/or Thomas (Tommy) Wainwright d/b/a Thomas Wainwright Plumbing Company and ABC Insurance Company

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ro Lou1 sT ANA f COLJR OF 1PPEAL FIRST CIRCUfI 2012 CA 0691 NO A TND1V AND KEV NSWOKTH DUALLY S nDMIr11S R I C R1F fiE EST OP HIS MINOR CHILDREN I IE DDISON AINSWORTH AND AUS AINSWORTII PAULETTE F IN I I AtNSWORT INDIVIDUALLY VEKSUS Kl I RS C T S BUILllF L THE MARYLAND CASUALTY NSURANCE AK COMPANY DAV1D PASCAL LAW THOMAS 1WAINWRIGHT Y OMM THOMAS WAINWKIGH PLUMBING COMPANY I OR TOIVIMY AND THQIVIAS WAINWRIGHT n a iOMAS DTWAW WRIGHT PLUMBING COMPANY AND ABC INSUREINCE COMPANY a Judgment Rendered APR 2 2 20t3 APPEALED I JM K THE NINE JUDICIAL DISl COURT H N E I CT R W ANB QR 1 Pn12ISH OI EAST BATON ROUGE HE STATE OF LOUISIANA 24 ION SECT 3S9 UMBERSSZ DOCKET THL HR MICHAEL CALDWELL JUDGE RABLE ONC Scott 1 Baton Fruge ouisiana Rouge L Attorney for Plaintiffs Appellants Kevin O Ainswoith Individually and as Administrator of the Estate of His Minor Children Addison Ainsworth and Austin insworth and Paulette Ainsworth Sidney W Degan IIl lamcs A Rowel Attorneys for Defendant Appellee riniry UnivcrsaL lnsurance Company I Travis I Bourgeois Ncw Orlcans Louisiana OItI SEI FETTICREW McDONALD AND WELCH JJ tvlcllONALll J his 1 is an a of a motion fo partial stiimmary judgment granted by the peal district coui in favor of Trinity niver nsln Con7pany Trinity had alleged al ance that tricre uas no gem issue of nlaterial fact that Trinity policies numbered inc 99400431 12 36 and 9900431 13 36 unambiguously preclude ovcrage f mold r related loss E no coverage for the mold damage alleged by the plaintiff the incling otion ta was granred This appeal followed Hnc rs Kevin Ainsworth and his wife Yaulette purchased a h at 18476 Lake me Ivlyrtic Dri ein Baton Rouge Louisiana in Apri120Q2 and moved in imniediately n Scpten 200 Mi Ainsworth discovered that the drain of the lacuzzi tub in bcr thu master bcdroom was not properly installed c water had leaked tlsequently causinb ridden w rot and mold damage iter s t a eesult of Ilis exposure to tlle nold rot inoisture and other unsanitary couditions Mr Ainsworth allegedly suffered physical injuries particularly au ation exacerl of his preexisting sinus pro lems In July 2007 he tiled suit indiviclually and on beha of his mit children against Thomas Wainwright d f or bla as llt Thou Wainwri PluiTibing Compaiiy who had perfoi7ned the plumbing work on the honie aiid his i isurer whose name was u aud alleged to be ABC lknown laisurance C In May 2008 an amended petitioi named Trinity Insurance omUany any Cotn as Waiiiwright sinsurer T alleged ll the New Home Warranty rinity iat Acl provided the xclusive remedy which the court rcjected Chere werc extensive proceedings in the district court regacding several of the defendant Howevcr the only issue before this court is the motion for partial The suit also named as defendants the builder and its insurer Also the petition was amcnded tu add additional defendants but those matt are not before us rs AJso in May 2008 a paitial no use of action was gr to Tri and David Pascal nted Siar isof the hume upon findin that tlie New Home Warrantv Act La R 9 et seq build S 3141 ided e pro tl cxclusivc reznedy for alleged deticiencies in the home ry ient d inity l summ judgir giaiit to Ti Univers nsurance Company and signed on ber NoveiY 7 2011 There has been son conlusion about this judgment e This court deterntined tl tl5e original udgment laeked decretal language and issued an at im z inle ordcr for the trial court ta sign a valid writtcn judgment which includes propriate a decretal language On Septembcr 6 201 the h coui ial tsigned an ended aix judgment that dismissed Plaintiff clair against 1 on policies s is rinity d numbea 9990Q43 131 1 3fi and 9900 13 36 Like the Novernber 7 20l 1 nuent jud tliis judgment is cer by the judge as being immediately appealable ed i linlike the judgments on the Bankees policies however the amended judgment does tiot specitically state which claims are being dismissed We have examined tlle motion for summ ryjudgment filed on Se 13 2010 and are satisfied pteiuber that it only seeks to have claims dismisscd that are stibjcct to thc fungi mold mildew and yeast excl PlaintifCs appeal this judgment sio N O llISCUSS As noted the issue before the district co tthat we are considering on appeal is whether the Coinmei Gerzeral Liability policies nuinbered 99900431 12 36 cial and 9900431 13 36 issued by Triniry to 7 Waim d Wainwright homas vright b a gcover the injuries sustained by Mr Ainsworth caused by the growth of Plumbi mold due to faulty plumbing work perfoi by WainwrighL Trinity had insured Mr W with policies in eFfect for one periods beginning in January inwright year 1996 and tet December 31 2 he polici contained the following 05 s pivvisions The jadament on the F3ankcrs policics is Aated December 22 2010 and aragra mmiber 4 stxtes 7t is further h ORDGKLD AD A DECRLtiD that any ar aIl properry damage and bodily injury claims of d TUDGED D d e aiutiffs p related u Ior Iiacteria including mold against BANKE2S INSURANCE CQ be and diey uugi vtPANY hercbv are DISMISSED vilh prejudice 3 kais ndorsement 1 1 k Changes Pc P Read It Carefu c iicy ease ly UNGI F MOLD MILDEW YEAST EXCLUSION LOtIISIANA his 1 endorscmei7t iiodifies insurance pi undei tlle following ovidcd RCIAL ONINT RAL C CENI LtABILITY COi Ei2AGE PAl2T A The following erclusion is addeci to Paragiaph 2 Exclusions of Section I Coverage n Bodily Injury and Properly Damage iability I Thifi insurance does not ap to ly Tungi 1 Bodily Injuiy arising out of or relating to the actual alleged or tlu inhalation of ingestion of contact with exposure eatened tb existence of or growtih or pr of any fungi I sence his exclusion a regardless of any other cause or event that ies 7 conLributes coi or in any sequeuce to such injury or currenUy darnage loss cost or expense 13ut this exclusion does not apply ere wl yoirr business is food processing sales or serving and Lhe bodily ii is caused solely by food poisoning in jury conilection with such processing sales or service 2 Pro damage ari5ing ulit of or relating to the actual alleged erly or tlireateticd contact witt exposurc to existence of or growth oc resencc of aizy fungi 3 Any loss cost or expense arising out of or rclating to th testirtg foa rnoi deaning up r containing itoring treating deto neutralizing remediating or disposing of ifying or in any way respon to or assessing the effects of fungi ling by ar iior by anyone else y sured A The following t added to Section V efinitiou is Definilions Fungi ineans any form of fungus including but not limited to yeast mold mildcw rust smut or oom musht and including any spores mycotoxins odors or any other substances products or l prod by released by or arising out yproducts iced of the current or pasY resence oi fungi But lungi does not include any fungi intended by the insured lor consumption 4 rinity liled a miriion for p su jud relyir on the policy I rtial m iuent g y az exciusions staled above a u the sarne exclusion language found in a policy ld on suer3 i by Ba The langua ikerti ewas examined by the district court iii a motion for j artial summaiy judgmeut filed by and granted to Bai Thc decision was kers appcaled atid ai by tttis cottrt See Ai v 7ri IL tirtned z Stur uilders C isrvorl 0980 2011 La A 1 Cir 2 unpublished p 12 10 s Trinity tnotion for parlial ary i sur judgment was alsc ranted by the distiict court and is the judgment now bein a peaied Appeilant at thal the di courL erred in granting the motion for giie iut h riary suni judgrncnt for several reasons He argues that there as material issues of c fact as lo whether thc noted exclusiou shauld apply Also he contends that therc are venuine issuce of material fact as to whether the insured believed the Completed Productt Operations Hazard was separate and distinct froir the Cocomercial General Liability Coverage Part Initial we note that the issue y befor us is whether the Fuilgi Exclusion precludes plaintiff from appellant recoverin dainages under die Trinity insurance policies We are not addressing ae ue tl is of Ll otc damages Chat may bc covered by the insurance policies ier rial Appellate courts rE summary judg de novo using the same vies nents criteria that govern the clistrict court consideration of whethee summary judgmeut s is tte appropri Bernard v 377 Ellis 2001 La 7So 12 23d A motion for summary judgment will be granted ifi the pleadings depositions answers to rogatories ei int and admissions on tile together with the affidavits if any show tliat there is uo genuine issue as to inaterial fact and that inover is enritled to tuent jud as a nlattcr of law Ic La C art 966 The starting point in P B aiialyzing ii policics is the principle that an insuraiice policy is a contract surance en beiw tY2e part and sl be constr usina the general rules of ies ould pretation iriler of coritracts set forth in 1he Civil Code Seiisebe v Ca Indem acd 5 Co 2010 La 1 070 IO 58 So 4i 445 28 l 446 When tl words of an e insurance contraet are clear a explicit and lead to rio absurd consequences no id urther aretation y finter m be madc iu search of the parties i courts must ltent and r c eni tllc cont as ti Id act ritten 1Ve h caretiilly xamined the langua of t conuact spccifically the vc e he i ui F l clusion The subj belief of the insui is not at issue here x ctive fincl tii the Fungi t clear and expliciY it xcfusion is We While it may have had consequeiices that may ve inter by some persons as unacceptable it is not reted d absui It does not cover tlie damages claimed by the ninsworths in this case Neitlier Mr Ainswoi alleged physical u uor aiiy damagcs claimed by the s h jury children are covered under General Corrnnercial Liability insuranc policies iumbeccd 99900431 12 3h and 9900431 1 i 36 inding fno e in lhe district court grant ofpartial surnmaryjudginent to rror s 1i Uni Insurance Company Lhe judgn appealed is affirmed Costs ent are ssessed to pLaintiffs appeltanls D AFFll2MI 6

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