JIMMY EBARB, JR. Respondent
D. SCOT BOSWELL D/B/A SCOT'S AUDIO AND TRIM, COLONY INSURANCE COMPANY, AND JOSEPH DYER Applicant
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
& WARNER, LLC By: Elizabeth P. Grozinger Richard G.
Barham Counsel for Respondent D. Scot Boswell d/b/a
Scot's Audio and Trim
EBARB, JR. In Proper Person Respondent
BROWN, DREW, and MOORE, JJ.
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.
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.
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.
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.
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.
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.
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.
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.
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