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Ryan v. Columns Hotel, Inc.

Court of Appeals of Louisiana, Fourth Circuit

May 10, 2017

BRADLEY RYAN AKERS AND ELIZA MARIA MORTZ
v.
THE COLUMNS HOTEL, INC., MICHAEL MCCORMICK AND ABC INSURANCE COMPANY

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-09971, DIVISION "N-8" Honorable Ethel Simms Julien, Judge.

          Paul N. Vance BALDWIN HASPEL BURKE & MAYER COUNSEL FOR THIRD-PARTY PLAINTIFF/APPELLANT, THE COLUMNS HOTEL, INC.

          Craig B. Mitchell Michael S. Rodriguez MITCHELL & ASSOCIATES, APLC COUNSEL FOR THIRD-PARTY DEFENDANT/APPELLEE, LOUISIANA RESTAURANT ASSOCIATION SELF-INSURERS FUND.

          (Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano).

          Terri F. Love Judge.

         Plaintiff filed suit against another employee of defendant hotel after receiving injuries in a physical altercation while at work. This appeal arises from a third-party demand of the defendant/third-party plaintiff hotel against a third-party defendant, the Louisiana Restaurant Association Self-Insurers Fund. Defendant hotel contends that the indemnity agreement between the parties covered the altercation. The fund filed a motion for summary judgment contending that their indemnity agreement was not an insurance policy, and did not provide coverage to the defendant hotel. The trial court agreed and granted the motion for summary judgment. The trial court dismissed all of the claims against the fund with prejudice.

         The defendant hotel appeals contending that the issue is not properly determined on a motion for summary judgment and that the exclusions did not apply. After reviewing, we find that the trial court correctly granted the motion for summary judgment, as the defendant hotel had not waived the right to deny coverage, and the physical altercation was excluded from coverage in a provision of the indemnity agreement. The judgment of the trial court is affirmed.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Bradley Akers filed suit against Michael McCormick for damages and personal injuries resulting from a physical altercation that took place while they were working as employees for The Columns Hotel, Inc. ("Columns"). The Columns then filed suit, as a third-party plaintiff, against the Louisiana Restaurant Association Self-Insurers Fund ("LRASIF") contending that the parties' indemnity agreement provided coverage for damages resulting from the altercation. LRASIF filed a Motion for Summary Judgment asserting that no coverage was provided under the indemnity agreement. The trial court granted the Motion for Summary Judgment and dismissed the claims against LRASIF with prejudice. The Columns filed a Motion for New Trial, which the trial court denied. The Columns' devolutive appeal followed.

         The Columns now appeals, maintaining that the trial court erred: 1) because the exclusions in the indemnity agreement were not applicable to the facts, 2) the exclusions were improper to consider on summary judgment, 3) and because the LRASIF waived the right to utilize the exclusions.

         MOTION FOR SUMMARY JUDGMENT

         "The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." La. C.C.P. art. 966(A)(2). "[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La. C.C.P. art. 966(A)(4). The burden of proof lies with the party motioning for summary judgment. La. C.C.P. art. 966(D)(1). However, "if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense." Id. Instead, the mover must "point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." Id. "The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

         "In determining whether the trial court erred in granting plaintiffs' Motion for Summary Judgment on the petition to annul, we must discern whether genuine issues of material fact exist." Descant v. Herrera, 03-0953, p. 8 (La.App. 4 Cir. 12/22/04), 890 So.2d 788, 793. "The standard for reviewing the trial court's grant or denial of a Motion for Summary ...


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