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Sims v. Maison Insurance Co.

Court of Appeals of Louisiana, First Circuit

September 15, 2017


         On Appeal from The 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana Trial Court No. C6445O4 The Honorable Todd Hernandez, Judge Presiding

          Kathleen M. Wilson Baton Rouge, Louisiana Attorney for Plaintif£1 Appellant, Roderick Sims

          Matthew J. Ungarino David I. Bordelon Metairie, Louisiana Attorneys for Defendant/ Appellee, Maison Insurance Company


          CRAIN, J.

         The plaintiff appeals a summary judgment dismissing his claim against an insurer based upon a finding of a material misrepresentation in the policy application. We reverse and remand.


         After his home was damaged by a fire, Roderick Sims made a claim under a homeowners' policy issued by Maison Insurance Company. Maison denied the claim, asserting the policy was voided by a material misrepresentation in the policy application. According to Maison, Sims misrepresented that no business is conducted on the premises when, in fact, he uses the home to conduct a business that acquires, restores, and sells automobiles.

         Sims filed suit, and Maison responded with a motion for summary judgment seeking a dismissal of the claims based on the misrepresentation, citing a policy provision voiding coverage if the insured makes a material misrepresentation in the application with the intent to deceive. In support of the motion, Maison offered the policy application, which is attached to a facsimile cover sheet; a certified copy of the insurance policy; excerpts of a sworn statement from Sims; and an affidavit by a representative of the insurer, who attested Maison would not have issued the policy if it had known of the business operations on the premises.[1]

         The policy application is a seven-page document. According to the attached cover sheet, the application was generated by an agent with MidSouth Insurance Agency, who faxed the document to Sims and requested he "sign and initial where requested and fax [the application] back to me as soon as possible." The fourth page of the application contains a list of 27 questions, all of which are answered with either a "Yes" or "No." The first question asks, "Is there any business conducted on the premises?" The indicated answer is "No." The application does not identify who provided the answer to that question or any of the remaining questions. The answers are type-printed rather than hand-written, and no initials or signatures appear anywhere on the page. The final two pages of the application contain signatures by Sims, one of which appears below a declaration that the applicant read the application and the information therein is "true, complete and correct to the best of my knowledge and belief."

         In the excerpts from Sims' sworn statement taken after the fire loss, he acknowledged operating a business called "Roderick Classic Car Sales, LLC" out of his home for two years leading up to the fire. According to Sims, "I buy - go to the auctions and . . . buy cars and resell them. I fix classic cars up. So basically buy, resell, and restore/restoration." Notably, the selected excerpts from the sworn statement contain no questions or statements about the completion of the insurance application, and, more particularly, who provided the answers to any of the questions on the fourth page. Sims was only asked how he got the insurance, to which he replied, "I Googled it off my phone and found them. Sol gave them a call, and they gave me a quote."

         After taking the matter under advisement, the trial court ruled in favor of Maison, stating in written reasons that Sims made a misrepresentation in the application that materially affected the risk assumed by Maison, and, if the insurer had known of the operation of the businesses at the home, it would not have issued the policy. A judgment was signed granting Maison's motion and dismissing Sims' claims with prejudice. Sims appeals.


         A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). If the mover will bear the burden of proof at trial on the issue before the court in the motion, the burden of showing there is no genuine issue of material fact remains with the mover. See La. Code Civ. Pro. art. 966D(1); Rider v. Ambeau, 11-0532 (La.App. 1 Cir. 2/1/12), 100 So.3d 849, 854. If the mover has made a prima facie showing the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. Jones v. Estate of Santiago, 03-1424 (La. 4/14/04), 870 So.2d 1002, 1006. ...

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