Constance Schafer and Jason Schafer, Sr. Individually and on behalf of their son, Jason Schafer, Jr. VS Wesley Edward Summers a/k/a Wayne E. Sommers and Cheri Summers

Annotate this Case

Download PDF

fE STA F pl 49VA aI I l REAL CtJ pF A Sr Ji rIF CIRG N0 2012 C 173U CONSTANCE SCHAFER AND JASON SCHAFER SR INDIVIDUALLY AND ON BEHALF OF THEIR SON JASON SCHAFER JR VERSUS WESLEY EDWARD SUMMERS A WAYNE E SOMMERS K AND CHERI SUMMERS 7udgment rendered FEg 1 5 2013 Appealed from the 21 Judicial Dlstrick Court in and for the Parish of Livingston Louisiana Trial Court No 125415 Honorable WUayne Ray Chutr udge ROBERT W HALLACK ATTORNEY FOR BATON APPELLANTS PLAIfVTIFFS CONSL4NCE SCHAFER AND ROUGE LA JASON SCHAFER SR INDIVIDUALLY AND ON BEHALF OF THEIR MINOR SON JASON SCHAFER R SALTAMACHIA DARRELLJ ATTORNEY FOR BATON APPELLEE DEFENDANT LA ROUGE WAYNE E SUMMERS R SHERMAN ALBANY Q MACK ATTORNEY FOR LA APPELLEE DEFENDANT SHERY S SUMMERS JAY M LONERO ATTORNEYS FOR ANGIE ARCENEAUX AKERS APPELLEE DEFENDANT METAIRIE LA ANPAC LQUISIANA INSURANCE COMPANY BEFORE KUHN PETTIGREW AND McDONALD e 7 PETTIGREW 7 This is an action for pe injuries sustained by a minor child who accidentally nal ingested prescription medication during the time he was placed in the custody of foster parents by the State of Louisiana The foster parents homeowner insurer was s dismissed through summary judgment o the ground that the homeowner policy did not s provide coverage for such claims From this judgrnent the minor child has appealed We hereby affirm the trial court sgrant of summary judgment FACTS In early 2009 Jason Schafer Jr Jason was in the care and custody of his foster parents Wayne E Summers Jr and Sheri S S pursuant to a Foster mmers Parent Agreement with the Louisiana Depar of Social Services Department At ment that time Jason was approximately eighteen months old and had been in the custody of Mr and Mrs Summers since October 3 2008 Earlier Jason and his three siblings had been removed from the custody of their biological parents and placed in different foster homes pursuant to an order of the court dated October 2 2008 On January 31 2009 Jason ingested prescription pain medication believed to be possibly Oxycodone or Effexor which purportedly feli out of a pocket of Mr Summers pants after he left them on the floor oP a cioset at his home Shortly after ingesting said drugs Jason became unconscious experienced difficulty breathing and even ceased breathing at one point Jasor was rushe by mb to Our iof the Lake Regi lance dy nal Medical Center in Baton Rouge where it was initially de thak his condition was ermined the result of Oxycodone inges It v iafier determined that Jason exhibited signs of tion as having ingested Effexor The opiates contained in he pain medication ingested by Jason The foster father of the minor Jason Schafer Jr is referred to herein as Wesley Edward Summers or Wayne E Sommers however it appears that the proper name of said defendant is Wayne E Summers r 2 The foster mother of the minor Jason Schafer Jr is repeatedly referred to herein as Cheri Summers however it appears that the proper name of said defendant is Sheri S Summers 3 Although representations were made thak Jason ancf his sibfings were removed from his biological parents custody by a court order dated December 4 2008 a review of the record reveals that Jason was actually removed from their custody on October 2 2008 L I caused his respiratory system to fail and the resulting loss of o to his brain rygen estimated to have been seventeen minutes caused Jason to have brain hypoxia s Jason biofogicai parents Ccanstance and lason chafer Sr were notified of the accident and arrived a the hospit s tf 3aso was piaea in the Intensive l r a erE n Care Unit and eventually transf tn Idrer ospital is New C As a result of d r eans r this incident Jason suffered irrepaca brain a By ord2rs of the court Jason was le age returned to the care of his biological parents or April 23 2009 ACTION OF THE TRIAL COURT On September 3 2009 Constance and Jason Schafer Sr individually and on behalf of their minor son Jason filed the instant litigation against Mr and Mrs Summers for the injuries Jason sustained while in their custody Mr and Mrs Schafer also asserted a claim for their own emotional distress and mental anguish as a result of having witnessed their infant son injuries s Mr and Mrs Schafer subsequencly filed a First Amending Petition for Damages on December 3 2009 wherein they added ANPA Lo Insurance Company ANPAC isiana the homeowner insurer of Mr and Mrs Summers as an additaonal defendant in this s matter Mr and Mrs Schafer alleged that as khe Summe homeowner insurer ANPAC s s was liable for all dama9es sustair in th incident ater r Jac 2 2010 Mr and ed uary Mrs Schafer filed a Secand P Petit for Damages wherein they named the ding mer o State of Louisiana State as an additional defendant Mr and Mrs chafer alleged that the State through the Department had agreed to indemnify Mr and Mrs Summers pursuant to the Foster Parent Agreement On February 10 2010 ANPAC filed an answer and also asserted a reconventional demand and a cross seeking a dec judgment regarding the lack of coverage claim aratory available under the ANPAC policy In accordance with La Cade Civ Pro art 6 Mr and Mrs ci petitioned f5 3 afer the court on September 14 2010 seeking the appointment of attorney Laurie Kadair 4 Pursuant to an August 17 2010 court order the Schafer c including Jason were once agair placed hildren in the legal custody of the Department 9 Redman to serve as tre legal te Jaso N ReCma trix r s awas previously appointed to serve as the trust in charge uf a Neede Tru that was estabiished for the sole e pecial benefit of Jason Mr and Mrs Schafer sekkl heir clairns ag lr ana Mrs Summers and the d st i State and reserved only their r pra aaainst f and Mrs Sum as insureds ghk ko e d ir ners under the ANPAC s homeowner policy By motion and order filed by Mr and Mrs Schafer and signed by the court on October 18 2010 Mr and Mrs Schafer individually and as previously on behalf of the minor child Jason dismissed with prejudice their individual claims and the iaims they had previously asserted on Jason s behalf Mr and Mrs Schafer expressly reserved therein the rights of a11 other parties On September 2 2011 ANPAC moved for summary judgment on the issue of whether the provisions of the homeownsr policy issued to Mr and Nlrs Summers s extended coverage to Jason or whether as ANPAC claimed Jason was an insured under the terms of the policy which speclfically exciu laims fo bodily injury to an insured ed Following oral argument the tria court granted NPAC Motion for Summary Judgment s in its entirety Said judgment d all cl of plaintiffs h1r and Mrs Schafer esmissed ims individually and on behalf of their minor son Jason with prejudice From this judgment Jason has appealed 5 In connection with its Motion for Summary Ju ANPAC also sought dismissal of Mr and Mrs gment s Schafer claims for emotional distress an mental angu on Yhe grounds tha the definition of bodily sh injury contained in the homeowner spplicy issued Eo Mr and Mrs Summers excludes coverage for expressly such claims This issue is moot in view o fact that ilr nd h1rs Schafer had previously dismissed their the individua claims with prejudice a year earlier 6 Despite the trial court appointment on Sept 15 2010 of Laurie Kadair Redman as Jason s moer s1egal tutrix and the trial cour subsequeni October 13 2G10 order dismissing with prejudice the individual cfaims s of Mr and Mrs Schafer the trial court judgment inexplicably reflects wunsel as representing plaintiffs s Mrs Schafer and Mr Schafer individually anci on behalf of their son Jason Additionally the judgment dismissed all claims af plaintifFs against ANFAC with prejudiee Pursuant to La Code Civ Pro aK D 683 Ms Redman in her capacity es Jason legal tutrix is the pro plaintifF to sue to enforce a right of s er an unemancipated minor Although Ms Redman is the proper party to pursue Jason slegal rights the trial judge who appointed her signed an order granting Jason motion for appeal Said order was submitted to the court by the attorney s who earlier represented Jason biological parents on his behalf Because ANPAC did not raise a dilatory s cception e objecting to Jason lack of procedural capacity see La Code Civ Pro art 926 it was s 6 A waived See La Code Civ Pro art 928 Nicosia v Guillory 322 So 129 13132 La 1975 A 2d 4 ASSIGNMENT OF ERROR ON APPEAL The sole error assigned by Jason in conneckion with this appeal is whether the trial court erred in findiny that he as a f ld was a member of the Summers rch st household and therefor2 excluded frnrr cmverage under fl ANAC insurance policy he STAIVBAI2D OF REVIEW A motion for summary judg is a pr device used to avoid a full nent cedurai scale trial when there is no genuine issue of materiaf fact Johnson v Evan Hall Sugar op Co Inc 2001 p 3 App 1 Cir 12 836 So 484 486 Summary 2956 La 02 0 2d judgment is properly granted if the pleadings depositions answers to interrogatories and admissions on file together with affidavits if any show there is no genuine issue of material fact and that mover is entitled to judgmenk as a matter of law La Code Civ Pro art 966 Summary judgment is favored and is designed to secure the just speedy B and inexpensive determination of every action La Code Civ Pro art 966 2 A Thomas v Fina Oil and Chemical Co 2002 pp 4 La App 1 Cir 2 0338 5 03 14 845 So 498 501 2d 502 On a motion for summary judgment the burden of proof is on the mover If however the mover wiil not bear the burden of procf at trial ora the matter that is before the court on the motion fior summary udgment kt mover urden on the motion does e s not require that all essential elements of the adv party claem action cr a be rse s fensE negated Instead the mover mus o auk to the court that there s an absence of t factual support for one or more elernent esser ta the adverse arty claim action or tial s defense Thereafter the aaverse arty must produce factua evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial If the adverse parly fails to meet this burden there is no genuine issue of material fact and the mover is entitled to summary judgment La Code Civ Pro art 966 Robles v 2 C oconMobile 0854 La E 2002 p 4 App 1 Cir 3 844 So 339 341 03 28 2d Summary judgments are reviewed on appeal de nouo An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate whether there is arry genuine issue of material fact and S whether the mover os entitiea to js as a matter of iaw Ernest v Petroleum dgment Service Corp 2002 p 3 App 1 Cir 11j19j03 868 So 96 97 writ 2482 La 2d denied 2La 266 c 83Q 3439 03 Q41 20 d SIAfV DISCU In his sinyle assignment of zrrcay a ar that the trial cc erred in granting pn ue Jrt ANPACs motion for summary judgmeric on the grounds that he was an insured under the homeowner policy that ANPAC issued to his foster parents Mr and Mrs Summers s Jason asserts that questions of fact remain as to whether he as a foster child can be considered a resident of his foster parents household and as such be considered an insured under the ANPAC policy A certified copy of the ANPAC Louisiana Special Homeowner Policy No 17 s 791 X 0 79A Form SH issued to Mr an irs Summers was attached to ANPACs 03 1 17 3 motion for summary judgment as Exhibit A Said policy provides in pertinent part as follows DEFINITIONS Throughout this policy you ar yci d rrefer to the narned insure shown in the Declarations and tfre spouse if a resident of the same househoid and we us and cur r to the Company providing this Fer insurance In addition cerkain words and phrases are defined as foiiows 6 insured means you and the followin9 esidents of your household a your relatives b any other person under the age bf 21 who is in the care af any person named abo underscoring supplied e SECTION II EXCLUSIONS 2 Coverage E Personal Liability does not apply to f bodily injury to you a ariy nsured ivitfnin the meaning of pa ta or b of Definition 6 insured 6 The issue of whether an i ac sura poiicjr a a matte of lavu provides or precludes coverage is a dispute that can be resolved prc within the framework of a motion for y r p summary judg Johnson v Aflstate Insurance Cornpany 95 La App nent 1953 1 Cir 5673 So 345 347 writ denied 96 La 6 675 So 1126 96 10 2d 1292 96 28 2d Summary judgment declaring a Eack f c ander ar insurance policy may not be verage rendered unless there is no reasonable interpretation of the policy when applied to the undisputed material facts shown by the evidenee s the motion under which pporking coverage could be afforded 7ones v Estate of Santiago 03 La 4 870 1424 04 14 2d So 1002 1010 It is well settled that an insurance policy is an agreement between the parties and should be construed according to the ger rules of interpretation of contracts as set eral forth in the Louisiana Civil Cnde Cadwallader v Allstate Insurance Company 1637 02 La 6848 So 577 580 When the words ofi a contract are clear and 03 27 2d explicit and lead to no absurd consequences no further interpretation may be made in search of the parties intent La Civ Code art 2046 Such intent is to be determined in accordance with the general ordinary alain and popular meaning of the words used in the policy unless the words have acquored a technical meaning Ledbetter v Concord General Corp 95 La 166S So 1166 1169 decree amended 95 0809 96 6 2d 0809 La 4 671 So 915 see La Civ Code art 2 If the poficy at issue is clear 96 18 2d J47 and expresses the intent of the par the agreement must be enforced as writt ies n Ledbetter 665 So at 1169 2d An nsurance policy should not be interpreted in an unreasonabie or a strained manner so as tc e or restrict its provision beyond whak nlarge is reasonably contemplated by its terms or t achie an absurd conclus Reynolds v on Select Properties Ltd 93 a 4 634 So 118 1183 0 14 94 11 2d Absent a conflict with statutory provisions or public policy insurers are entitfed to limit their iiability and to impose and enforce reasonable conditions on khe policy abligations they contractualiy assume Campbell v Markel American Insurance Company QO 1448 La App 1 Cir 2d O1 21 9 822 So 617 623 writ 2813 denied 01 La 1 805 02 4 2d So 204 In an acteon under an insurance contract the insured bears the burden of proving the existenee of the policy and coverage Tunstall v Stierwald 01 1765 La 2 809 So 916 921 How the i bears the burder of proving 02 26 Zei er s surQr policy limits or excluslons Id The Frimary args advance by s r conrec i his appeal in this ment rR ion h matter is that the trial court erred in concluding that fcster children are as a matker af law considered to be members of the household in which they are temporarily living Jason emphasizes that his living arrangement with Mr and Mrs Summers was temporary and only until such time as the district court determined whether he and his siblings should be returned to their biological parents In support of its motion for summary judgment ANPAC cites and relies upon the case of 7enks v State 507 So 877 La App 4 Cir 1987 writ denied 513 So 294 2d 2d La 1987 which addressed circumstances almost identieai to those presented in the instant case In Jenks a 15 old chold in fosker care was determined by the fourth month circuit to have been a of his foste arents ho ar thereby a residen sehold d insured under an identical provision of a horneav policy iss to his foster parents s ner ed prior to his placement in the home The fourth circuit further concluded that ue to the s child status as an pnsured the badiEy injury he su was expressly exc from ained uded coverage under the ierm of his fosker parents h r spoli er rreovv The fourth circuit in Jenks held in pertinent part This court has held that the phrase residents of the named insured s household is not ambiguous as applied to particular situations e a g in his mother household s Shoemann v Skate residency s child Country Inc 459 So 743 La App 4 Cir 1984 We da not find this 2d s policy language ambiguous under these circumstances Henry was residing with the Dardens as a foster child He had been living under the same roof for many months and would have cortinued to live with them for an indefinite period of time had the tragic injury not occurred HEnry was placed in the home in order that the Dardens could supply a parertal and family relationship Th poliey exclusion is clear ar urambiguous The orr possible s d y ambiguity occurs in the definition of insured in the onclusionary language of the poiicy Even if the phrase is considered ambiguous the ambiguity would generaliy be resolved in favor of coverage In this instance if the ahifd is covered under the policy as a result of the exciusion of the bodily 8 injury of a insured eeovery un t nneuv poiicy must be e e ner s denied enks 507 So at88 2d The ceurt in Jenks fur ricaxeu h h sion of onsur st to a foster her t d tus child living in the hcme can be a dau wncd Ire ane snska the policy ged e ce s exclusion for bodily injuries to an onsure would perate to deny coverage for injuries such as those sustained by the foster child in the instant case while on the other hand coverage would be extended to cover any tortious acts committed by the foster child We find that under the specific policy language at issue and the facts of this case Jason was a resident of the Summers household and n the care of ANPAC insureds As s such Jason must be considered a insured and his bodily injury ds expressly ex i luded from coverage under the ANPAC homeowner spolic Accordingly the trial court correctly granted summary judgment in favor c ANPAG f DECREE For these reasons we affirm the trial court d dism all Jasan elaims sjsssing s ment against defendant appellee ANPAC siana Lou Insurance assessed against plaintiff Jason Schafer Jr appellant AFFIRMED 9 pary Cor Appeal costs are

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.