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Ebarb v. Boswell

Court of Appeals of Louisiana, Second Circuit

July 19, 2017

JIMMY EBARB, JR. Respondent
v.
D. SCOT BOSWELL D/B/A SCOT'S AUDIO AND TRIM, COLONY INSURANCE COMPANY, AND JOSEPH DYER Applicant

         On Application for Writs from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 149383 Honorable Jeff Cox, Judge

          LARZELERE PICOU WELLS SIMPSON LONERO, LLC By: Morgan J. Wells, Jr. Evan J. Godofsky Counsel for Applicant, Colony Insurance Co.

          BARHAM & WARNER, LLC By: Elizabeth P. Grozinger Richard G. Barham Counsel for Respondent D. Scot Boswell d/b/a Scot's Audio and Trim

          JIMMY EBARB, JR. In Proper Person Respondent

          Before BROWN, DREW, and MOORE, JJ.

          DREW, J.

         In this lawsuit stemming from a physical altercation at a business, the business's insurer, Colony Insurance Company, sought supervisory review of the denial of its motion for summary judgment. We granted the writ to docket. Concluding that the trial court erred in denying the motion for summary judgment, we reverse the judgment.

         FACTS

         On April 10, 2015, Ebarb was a customer at Scot's Audio & Trim when he was allegedly struck by Joseph Dyer, an employee of Scot's. Colony had issued a Commercial Auto Liability Policy to D. Scot Boswell d/b/a Scot's Audio & Trim ("Boswell"). The policy period was from May 29, 2014, to May 29, 2015.

         On February 29, 2016, Ebarb filed suit against Boswell, Colony Insurance Company, and Joseph Dyer. Ebarb alleged that:

• On or about April 10, 2015, Dyer approached Ebarb as he was on the premises of Scot's Audio and Trim having services performed on his automobile.
• Without warning or provocation, Dyer assaulted and battered Ebarb, causing his injuries.
• Dyer was charged with criminal offenses for his physical attack on Ebarb.
• Dyer subsequently pled guilty to simple battery.
• Dyer committed a battery upon Ebarb in contravention of Dyer's duty and obligation under the law to not harm another and as a result of his unjustified attack upon Ebarb, proximately caused the personal injuries suffered by Ebarb.

         Regarding Boswell's liability, Ebarb alleged:

The negligence, errors, omissions, and acts of Defendant, D. SCOT BOSWELL, D/B/A SCOT'S AUDIO AND TRIM, were a cause in fact of injuries sustained by Plaintiff in that Defendant D. SCOT BOSWELL, D/B/A SCOT'S AUDION AND TRIM:
A. Failed to properly supervise employees;
B. Failed to do proper vetting of employees;
C. Failed to prevent the assault and battery; and
D. Other improper/negligent acts as may be proven at trial.

         Boswell filed an answer on April 4, 2016, raising the affirmative defense that Ebarb instigated the fight by taunting Dyer, and was therefore responsible for his own injuries.

         Colony filed its answer on April 25, 2016. Three months later, Colony filed a motion for summary judgment in which it argued that it did not provide insurance coverage to Boswell, Dyer, or any other party for the claims asserted by Ebarb as those claims were specifically excluded from coverage under the policy it had issued to Boswell.

         Boswell filed an opposition to the motion for summary judgment in which he disputed that coverage was not provided under the policy. He contended that liability coverage was provided in Section II of the policy, Coverage A, entitled, "Garage Operations - Other Than Covered Autos." Boswell attached the police report from the incident to his opposition.

         Boswell also filed a cross-claim against Colony in which he alleged that pursuant to a Louisiana Endorsement to "Garage Operations - Other Than Covered Autos, " Colony was obligated to defend Boswell until the suit was resolved, pay for the reasonable attorney fees incurred by Boswell until Colony assumed his defense, and indemnify Boswell for Ebarb's claims and demands.

         A hearing on the motion for summary judgment was held on October 17, 2016. In denying the motion for summary judgment, the trial court noted that Colony failed to produce any evidence showing that the cause of action giving rise to the lawsuit was excluded from coverage under its policy. The court added that there was no admissible evidence demonstrating that a battery actually occurred, as the police report was inadmissible hearsay. The court also found that there was a dispute as to whether Dyer was an employee of Scot's at the time of the incident. Thus, because it ...


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