FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-09971,
DIVISION "N-8" Honorable Ethel Simms Julien, Judge.
N. Vance BALDWIN HASPEL BURKE & MAYER COUNSEL FOR
THIRD-PARTY PLAINTIFF/APPELLANT, THE COLUMNS HOTEL, INC.
B. Mitchell Michael S. Rodriguez MITCHELL & ASSOCIATES,
APLC COUNSEL FOR THIRD-PARTY DEFENDANT/APPELLEE, LOUISIANA
RESTAURANT ASSOCIATION SELF-INSURERS FUND.
composed of Judge Terri F. Love, Judge Madeleine M. Landrieu,
Judge Joy Cossich Lobrano).
F. Love Judge.
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.
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.
BACKGROUND AND PROCEDURAL HISTORY
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
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.
FOR SUMMARY JUDGMENT
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
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 ...