APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2006-05722, DIVISION " J" . Honorable Paula A. Brown, Judge.
Freeman R. Matthews, Timothy R. Richardson, USRY, WEEKS & MATTHEWS, New Orleans, LA, COUNSEL FOR APPELLANT/FESTIVAL PRODUCTIONS, INC. -- NEW ORLEANS.
Thomas L. Gaudry, Jr., Jairo F. Sanchez, GAUDRY RANSON HIGGINS & GREMILLION, L.L.C., Oakwood Corporate Center, Gretna, LA, COUNSEL FOR APPELLEE/MARYLAND CASUALTY COMPANY.
Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Joy Cossich Lobrano. BELSOME, J., CONCURS IN PART AND DISSENTS IN PART WITH REASONS.
Joy Cossich Lobrano,
[2014-1012 La.App. 4 Cir. 1] Festival Productions, Inc. -- New Orleans (" FPINO" ) appeals the June 4, 2014 trial court judgment granting summary judgment in favor of Maryland Casualty Company (" MCC" ) and against FPINO and plaintiff, Deborah Daniels, on the issue of insurance coverage, and dismissing all claims against MCC with prejudice. MCC answered the appeal, arguing that FPINO's appeal is frivolous, and that FPINO should be ordered to pay all costs and attorney fees incurred by MCC in connection with this appeal.
In June 2006, plaintiff, Deborah Daniels, filed a lawsuit in Orleans Parish, alleging that she sustained injuries after slipping and falling on an unknown substance while attending the Essence Festival at the Louisiana Superdome on July 3, 2005. The parties named as defendants included SMG Crystal, L.L.C. (" SMG" ), the Louisiana Stadium & Exposition District (" LSED" ), the State of Louisiana, Essence Festivals, L.L.C. (" Essence" ) and FPINO. In addition to the above-named defendants, plaintiff also named as defendants the defendants' insurers, including MCC, who was named as the insurer of FPINO.
[2014-1012 La.App. 4 Cir. 2] MCC originally filed a motion for summary judgment against FPINO and plaintiff on June 2, 2011, arguing that its policy insuring FPINO did not cover damages for plaintiff's accident because the Superdome was not one of the designated premises covered under the policy. On November 4, 2011, FPINO filed a cross-claim against MCC and Essence, alleging that as an insured under MCC's policy, FPINO was owed a defense and indemnity by MCC, which MCC refused to provide. On April 3, 2012, FPINO filed a motion for summary judgment against MCC, on the issue of insurance coverage. On November 2, 2012, the trial court denied MCC's June 2011 motion for summary judgment, and granted FPINO's April 2012 motion for summary judgment. At the September 28, 2012 hearing on those motions, the trial court stated at the end of the hearing that MCC's " commercial liability policy...ambiguously fails to exclude coverage in this case."
MCC subsequently filed a motion for new trial from the trial court's November 2, 2012 judgment granting summary judgment in favor of FPINO and denying MCC's motion for summary judgment. On March 5, 2013, the trial court granted MCC's motion for new trial, reversed its prior ruling and granted summary judgment in favor of MCC. In reasons for judgment, the trial court found that: (1) MCC's policy provided coverage to FPINO only for two locations (336 Camp Street and 938 Moss Street); (2) because of the designated premises endorsement, there is no coverage for the Superdome; and (3) Essence is not an additional insured under the policy, because the policy's contractual liability exclusion precludes coverage for contracts that assume liability for other parties.
[2014-1012 La.App. 4 Cir. 3] FPINO appealed the March 5, 2013 judgment, and this Court vacated the judgment on procedural grounds and remanded the case to the trial court for further proceedings. Daniels v. SMG Crystal, L.L.C., et al., 13-0761 (La.App. 4 Cir. 12/4/13), 128 So.3d 1272. This Court concluded that the trial court's November 2, 2012 judgment, denying MCC's motion for summary judgment, " was an interlocutory order and our law recognizes no procedure for obtaining a new trial on a denial of a motion for summary judgment." Id., p. 9, 128 So.3d at 1277 (citing Carter v. Rhea,
01-0234, p. 5 (La.App. 4
Cir. 4/25/01), 785 So.2d 1022, 1025.) Citing Magallanes v. Norfolk Southern Ry. Co., 09-0605, p. 5 (La.App. 4 Cir. 10/14/09), 23 So.3d 985, 989, this Court found that " the trial court in this matter erred as a matter of law by reconsidering the denial of the motion for summary judgment through the procedural vehicle of a motion for new trial and in rendering summary judgment, dismissing Maryland [MCC] from this lawsuit with prejudice." Id., p. 11, 128 So.3d 1277-1278. This Court noted that in Magallanes, this Court held that " [t]he proper procedure for obtaining reconsideration of the motion for summary judgment which has been denied is to re-urge the motion itself by re-filing it prior to trial." Id., p. 10, 128 So.3d at 1277.
On remand, MCC again filed a motion for summary judgment against plaintiff and FPINO on the issue of insurance coverage for the accident at issue in this lawsuit. FPINO opposed MCC's re-urged motion for summary judgment, and alternatively, filed its own motion for summary judgment. On June 4, 2014, [2014-1012 La.App. 4 Cir. 4] following a hearing, the trial court granted MCC's motion for summary against plaintiff and FPINO on the issue of insurance coverage, and dismissed all claims against MCC with prejudice. In that same judgment, the trial court also denied FPINO's motion for summary judgment. FPINO now appeals.
On appeal, FPINO argues that the trial court erred in granting MCC's reurged motion for summary judgment, which dismissed FPINO's claims against MCC for insurance coverage, defense and bad faith damages related to MCC's alleged coverage of claims made by plaintiff against FPINO for damages resulting from plaintiff's July 3, 2005 accident at the Essence Festival in the Louisiana Superdome. At the conclusion of the hearing on MCC's re-urged motion for summary judgment, the trial court stated its finding that MCC's commercial liability policy unambiguously excludes coverage for the site of plaintiff's fall (the Louisiana Superdome). The court found that the common intent of the insured and the insurer was to provide liability coverage for FPINO for injuries arising out of the use of two locations, 336 Camp Street and 938 Moss Street, both in New Orleans. Noting that the policy contains a designated premises endorsement, which expressly limits coverage to those two locations, the trial court found that the site of plaintiff's accident, the Louisiana Superdome, ...