LEON MARION LALONDE, JR. AND MARTHA SMITH LALONDE
FRANK THOMAS VALLOT AND BARBARA KAY BUTLER VALLOT
On Appeal from the 21st Judicial District Court Parish of Tangipahoa, Louisiana. Docket No. 2010-0001994. Honorable Edward J. Gaidry, Judge Pro Tempore, Division " G", Honorable M. Douglas Hughes, Judge Presiding, Division " D" .
Will Montz, Randazzo Giglio & Bailey, LLC, Lafayette, LA, Attorney for Third Party Defendant/Appellee, Continental Casualty Company.
Patrick K. Reso, Amy L. Gonzales, Seale & Ross, P.L.C., Hammond, LA, Attorneys for Defendants-Appellants, Frank Thomas Vallot and Barbara Kay Butler Vallot.
BEFORE: PARRO, McDONALD, AND CRAIN, JJ.
[2014 0167 La.App. 1 Cir. 2]
Frank Thomas Vallot and Barbara Kay Butler Vallot appeal a September 16, 2013 judgment granting a motion for summary judgment and dismissing their claims against Continental Casualty Company (Continental). They also appeal a December 2, 2013 judgment denying their request for a new trial. For the following reasons, we affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2007, Leon Marion Lalonde, Jr. and Martha Smith Lalonde bought a piece of immovable property in Ponchatoula, Louisiana, from the Vallots. The Lalondes constructed a residence on the property and occupied it in July 2009. While trenches were being dug on the perimeter of the house for water and electrical lines, the Lalondes discovered that the property may previously have been used as a landfill. By October 2009, some unusual structural issues prompted them to hire a licensed environmental engineer to evaluate the property and determine the nature and extent of the problem. His investigation revealed that the residence was built on a debris landfill, which was unstable and would eventually cause the structural failure of the house, rendering it uninhabitable.
On May 14, 2010, the Lalondes sued the Vallots in redhibition, alleging that the Vallots knew when they sold the property that it had been a debris landfill, but intentionally withheld this information. They further alleged that the presence of the landfill was a redhibitory defect, which rendered the property completely unsuitable for its intended use. The Lalondes sought rescission of the sale, plus the costs of the improvements, out-of-pocket expenses, and general damages for mental anguish, inconvenience, and stress. On July 14, 2010, the Vallots filed an answer and a third-party demand, naming Charlene Branch Daniels and Branch Real Estate, LLC (Branch) as third-party defendants, alleging they had breached a fiduciary duty and had been negligent in representing the Vallots as the real estate listing agents on the property. The third-party demand was served on Ms. Daniels on August 5, 2010.
[2014 0167 La.App. 1 Cir. 3] On June 1, 2011, the Vailots amended their third-party demand to add Continental as a third-party defendant as the errors and omissions insurer of Ms. Daniels and Branch. Continental received notice of this demand on June 13, 2011. The Continental policy insuring Ms. Daniels and Branch was a " claims-made-and-reported" policy with a policy period from January 1, 2010, to January 1, 2011. Although Ms. Daniels and Branch received notice of the Vailots' claims against them on August 5, 2010, within the policy period, Continental was not notified until after the policy period, when Continental was served with notice of the Vailots' third-party demand on June 13, 2011. On July 8, 2013, Continental filed a motion for summary judgment and for a declaratory judgment, claiming that because the Vailots' claim was not reported to Continental during the policy period, as required by the policy, there was no coverage.
Continental's motion for summary judgment was heard on August 26, 2013, and on September 16, 2013, the court signed a judgment granting the motion and dismissing all claims against Continental. The Vallots' motion for a new trial was denied on December 2, 2013. They have appealed both judgments.
An appellate court reviews a trial court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750. 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. West v. Clarendon Nat'l Ins. Co., 99-1687 (La.App. 1st Cir. 7/31/00), 767 So.2d 877, 879. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); George S. May Int'l Co. v. Arrowpoint Capital Corp., 11-1865 (La.App. 1st Cir. 6/6/14, 97 So.3d 1167, 1170. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter [2014 0167 La.App. 1 Cir. 4] of law. LSA-C.C.P. art. 966(B)(2); In re Succession of Beard, 13-1717 (La.App. 1st Cir. 6/6/14), 147 So.3d 753, 759.
Whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. Doiron v. Louisiana Farm Bureau Mut. Ins. Co., 98-2818 (La.App. 1st Cir. 2/18/00), 753 So.2d 357, 362 n.2. In seeking a declaration of coverage under an insurance policy, Louisiana law places the burden on the plaintiff to establish every fact essential to recovery and to establish that the claim falls within the policy coverage. Ho v. State Farm Mut. Auto Ins. Co., 03-0480 (La.App. 3rd Cir. 12/31/03), 862 So.2d 1278, 1281, citing Pierce v. Aetna Life and Cas. Ins. Co.,572 So.2d 221, 222 (La.App. 1st Cir. 1990). Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the ...