FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-00879,
DIVISION "E" Honorable Clare Jupiter, Judge
Bradley J. Luminais, Jr. Jade C. McKeough WAGAR RICHARD
KUTCHER TYGIER & LUMINAIS, LLP COUNSEL FOR
Christopher M. G'sell Alan J. Yacoubian JOHNSON,
YACOUBIAN & PAYSSE COUNSEL FOR DEFENDANT/APPELLEE.
composed of Chief Judge James F. McKay, III, Judge Rosemary
Ledet, Judge Sandra Cabrina Jenkins.
Rosemary Ledet Judge.
an insurance coverage dispute arising out of a claim under a
Motor Truck Cargo Liability Policy. From the trial
court's judgment granting the motion for summary judgment
filed by the defendant-insurer, OOIDA Risk Retention Group,
Inc. ("OOIDA"), the plaintiff, Roadrunner
Transportation Systems ("Roadrunner"), appeals. The
defendant-insured, Anita Brown, d/b/a Browns Transport
("Ms. Brown"), is not a party to this appeal.
Finding merit to Roadrunner's argument that it was
premature for the trial court to grant summary judgment given
the lack of adequate discovery, we reverse and remand for
AND PROCEDURAL BACKGROUND
contracted with a third party, Sage V. Foods
("Sage"), to arrange for the transportation of a
shipment of frozen rice from Little Rock, Arkansas to
Ontario, California. Roadrunner, in turn, contracted with Ms.
Brown to transport the frozen rice. The transportation
schedule called for the shipment to be picked up on May 18,
2015, from Sage in Little Rock, Arkansas, and for it to be
delivered by May 21, 2015, to a warehouse in Ontario,
California. Pursuant to this contract, Ms. Brown transported
the frozen rice product in a truck owned, operated, and
maintained by her. Upon arrival at the warehouse in
California, the frozen rice shipment was tested and found to
be spoiled. Sage rejected and destroyed the spoiled rice on
May 27, 2015. Sage demanded reimbursement from Roadrunner for
the loss of the frozen rice shipment, totaling $42, 303.54,
which Roadrunner paid.
that the loss of the shipment was the result of Ms.
Brown's failure to keep the rice properly cooled while
being transported, Roadrunner commenced this suit on January
26, 2016, against Ms. Brown and her insurer, OOIDA. In its
petition, Roadrunner averred that Ms. Brown's negligence,
which caused the loss of the frozen rice shipment, consisted
of the following nonexclusive particulars: failing to
properly use, operate, and maintain the truck or trailer;
failing to sufficiently cool the product; and failing to
follow standard industry practices regarding transport of
March 31, 2016, OOIDA answered the petition solely on its own
behalf.In its answer, OOIDA acknowledged that it
issued a policy of insurance to Ms. Brown; however, it denied
coverage of Roadrunner's claim. On June 15, 2016, OOIDA
filed a motion for summary judgment, seeking a determination
that there was no coverage for Roadrunner's claim under
the policy it issued to Ms. Brown. The only evidence OOIDA
offered in support of its summary judgment motion was
Roadrunner's petition and OOIDA's policy. In its
memorandum in support of its motion, OOIDA cited the
following provisions of the Motor Truck Cargo Liability
Policy it issued to Ms. Brown:
In consideration of the premium paid hereon. . . .
Underwriters hereby agree to indemnify the Insured for all
risks of physical loss or damage from an external cause to
lawful cargo in and/or on a covered truck while in their
care, custody or control in the ordinary course of transit,
including loading and unloading by the Insured, during the
period of insurance specified in this Policy, while such
covered [trucks] are within the contiguous states of the
United States of America, the District of Columbia, Alaska
(subject to condition 2) and Canada.
THIS INSURANCE BEING SUBJECT TO ALL THE PROVISIONS,
DEFINITIONS, EXCLUSIONS, TERMS AND CONDITIONS CONTAINED IN
THE FOLLOWING WORDING.
This insurance does not cover:
5. Loss or damage caused by spoilage, contamination,
deterioration, freezing, rusting, electrical and/or
mechanical failure, and/or damage to refrigerated and/or
temperature controlled cargo
UNLESS CAUSED BY OR RESULTING FROM:
(a) fire, lightning, or explosion;
(b) accidental collision of the covered truck with any other
vehicle or object;
(c) overturning of the covered truck;
(i) stranding, collision, burning, grounding or sinking of
ferry while the covered truck is on board.
* * *
11. Loss or damage caused by or resulting from mildew, decay,
mold, insects, vermin, insufficiency of insulation or
packing, improper securement, wear, tear, gradual