APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 640-321 C/W 752-253,
DIVISION "D" HONORABLE SCOTT U.SCHLEGEL, JUDGE
COUNSEL FOR DEFENDANT/APPELLEE, WOODWARD DESIGN BUILD, LLC
CHRISTOPHER K. LEMIEUX BRETT W. TWEEDEL JONATHAN S. FORESTER
JOHANNA E. LAMBERT
COUNSEL FOR DEFENDANT/APPELLANT, LAFAYETTE INSURANCE COMPANY
DAVID V. BATT, BRADLEY S. GROCE
composed of Judges Susan M. Chehardy, Jude G. Gravois, and
Robert A. Chaisson
M. CHEHARDY CHIEF JUDGE
Insurance Company appeals the 24th Judicial District
Court's judgment of November 22, 2016, holding that
Lafayette is obligated to defend and indemnify Carl E.
Woodward, LLC in this litigation. For the reasons that
follow, we affirm this judgment of the district court.
litigation has been the subject of several reported opinions,
including two from this Court and two from the Louisiana
Supreme Court. See Moreno v. Entergy Corp., 12-97
(La. 12/4/12), 105 So.3d 40; Moreno v. Entergy
Corp., 09-976 (La.App. 5 Cir. 10/27/11), 79 So.3d 406;
Moreno v. Entergy Corp., 10-2268, 10-2281 (La.
2/18/11), 64 So.3d 761; Moreno v. Entergy Corp.,
09-976 (La. App 5 Cir. 9/10/10), 49 So.3d 418. Our recitation
of the factual history here draws from these prior opinions.
Hurricane Katrina, Carl E. Woodward, LLC
("Woodward"), a general contractor, entered into a
construction contract with Eagle Enterprises of Jefferson,
Inc. ("Eagle"), the owner of the Walgreens Shopping
Center at 7100 Veterans Memorial Boulevard in Metairie,
Louisiana. Woodward subcontracted with Stewart Interior
Contractors, LLC ("Stewart") to install framing and
exterior wall material at the shopping center. Stewart, in
turn, subcontracted with Landaverde Construction, LLC
("Landaverde") to assist with supplying labor.
Plaintiff Daniel Moreno was an employee of Landaverde and one
of the laborers supplied under this subcontract. While at the
work site on January 5, 2006, Mr. Moreno sustained serious
injuries as a result of contact with the overheard power
lines owned and operated by Entergy Louisiana, LLC
January 4, 2007, Mr. Moreno sued Entergy, Eagle, Woodward,
Stewart, Walgreen Louisiana Company, Inc., the Parish of
Jefferson, and Stewart's liability insurer, Lafayette
Insurance Company ("Lafayette"). On April 2, 2007,
Entergy filed an answer denying fault and filed third party
demands against Stewart, Landaverde, and Woodward, seeking
complete indemnity under the Louisiana Overhead Power Line
Safety Act, La. R.S. 45:141-146. Six months later, on October
11, 2007, Lafayette entered into a contract with Woodward,
wherein Lafayette agreed to defend and indemnify Woodward up
to the policy limits of the insurance contract between
Lafayette and Stewart.
plethora of cross-claims and motions for summary judgment
amongst the parties ensued. These were ultimately resolved
with several rulings from the district court in 2009, review
of which necessitated two trips to this Court, see Moreno
v. Entergy Corp., 09-976 (La. App 5 Cir. 9/10/10), 49
So.3d 418; Moreno v. Entergy Corp., 09-976 (La. App
5. Cir. 10/27/11), 79 So.3d 406, and two to the Louisiana
Supreme Court, see Moreno v. Entergy Corp., 10-2268,
10-2281 (La. 2/18/11), 64 So.3d 761; Moreno v. Entergy
Corp., 12-97 (La. 12/4/12), 105 So.3d 40. In the end, in
2012, the Louisiana Supreme Court vacated the district
court's rulings granting summary judgment in favor of the
contractors and remanded the matter to the district court for
further proceedings. See Moreno, 105 So.3d at 52. A
portion of these proceedings on remand is the subject of this
remand, several parties re-urged and/or re-filed motions for
summary judgment. The district court granted summary judgment
in favor of Landaverde's insurer, Western World Insurance
Company, as to Entergy's third party demand against
Landaverde, finding that Western World's insurance policy
did not provide coverage for the claims asserted by Entergy
against Landaverde. The court also granted summary judgment
in favor of Landaverde and dismissed Entergy's third
party demand against Landaverde. On December 10, 2014, the
court granted summary judgment in favor of Stewart and
dismissed Entergy's third party demand against Stewart,
but denied Woodward's motion for summary judgment on
Entergy's third party demand against Woodward. In this
judgment, the court also specified that in accordance with
La. C.C.P. art. 966(F),  it made "no findings of negligence
as to Stewart[.]" On December 11, 2014, counsel that had
been representing Lafayette and Woodward enrolled additional
counsel on the two companies' behalf.
6, 2015, Lafayette filed a petition for declaratory judgment,
seeking a ruling that Lafayette owes no duty to defend or
indemnify Woodward. On August 5, 2015, Entergy filed a
supplemental third party demand against Woodward's
insurers, Gray Insurance Company ("Gray") and
Lafayette. Gray filed a cross-claim against Lafayette and an
exception of no right of action as to Entergy's third
party demand. Woodward and Lafayette filed cross-motions for
summary judgment on Lafayette's petition for declaratory
district court overruled Gray's exception of no right of
action and heard the cross-motions for summary judgment on
October 31, 2016. The court issued its judgment on November
14, 2016, in which it granted Woodward's motion for
summary judgment and denied Lafayette's. The court
followed this with an amended judgment on November 22, 2016,
in which it held that the October 11, 2007 agreement between
Lafayette and Woodward is a valid contract and that Lafayette
waived its rights to deny coverage to Woodward. The court
designated this a final judgment pursuant to La. C.C.P. art.
sought and was granted a devolutive appeal from this
appeal, Lafayette assigns three errors:
(1) The district court erred in denying Lafayette's
motion for summary judgment.
(2) The district court erred in holding that Lafayette waived
its rights to deny coverage to Woodward.
(3) The district court erred in granting Woodward's
motion for summary judgment.
address these interrelated assignments of error together. Our
standard of review for a judgment granting or denying a
motion for summary judgment is de novo. Boutin
v. Roman Catholic Church of the Diocese of Baton Rouge,
14-313 (La.App. 5 Cir. 10/29/14), 164 So.3d 243, 246,
writ denied, 14-2495 (La. 2/13/15), 159 So.3d 469.
Under this standard, we use the same criteria as the trial
court in determining if summary judgment is appropriate:
whether there is a genuine issue as to material fact and
whether the mover is entitled to judgment as a matter of law.
facts are not in dispute here and at issue is the
interpretation of an insurance policy, which, as a matter of
contract interpretation, is a question of law. See
Safeway Ins. Co. v. Gardner, 15-696 (La.App. 5 Cir.
4/27/16), 191 So.3d 684, 687 (citing Gorman v. City of
Opelousas, 13-1734 (La. 7/1/14), 148 So.3d 888, 892;
Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12
So.3d 945, 949). As such, it may be resolved by means of a
declaratory judgment. Id. (citing Mapp Constr.,
LLC v. Amerisure Mut. Ins. Co., 13-1074 (La.App. 1 Cir.
3/24/14), 143 So.3d 520, 528 ("The function of the
declaratory judgment is simply to establish the rights of the
parties or express the opinion of the court on a question of
law without ordering anything to be done."); Poynter
v. Fidelity & Casualty Co., 140 So.2d 42, 46-47
(La.App. 3 Cir. 1962) (finding a declaratory judgment was
appropriate to determine whether an insurance policy required
the liability insurer to defend a suit filed against the
an insurance policy is a contract between the parties, it is
construed with the general rules of contract interpretation.
Safeway, supra (citing Louisiana Ins.
Guar. Ass'n v. Interstate Fire & Casualty Co.,
93-0911 (La. 1/14/94), 630 So.2d 759, 763). Contracts have
the effect of law for the parties and the interpretation of a
contract is the determination of the common intent of the
parties. Clovelly Oil Co., LLC v. Midstates Petroleum
Co., LLC, 12-2055 (La. 3/19/13), 112 So.3d 187, 192
(citing Marin v. Exxon Mobil Corp., 09-2368 (La.
10/19/10), 48 So.3d 234, 258; La. C.C. arts. 1983 and 2045).
The reasonable intention of the parties to a contract is to
be sought by examining the words of the contract itself, and
not assumed. Id. (citing Prejean v.
Guillory, 10-0740 (La. 7/2/10), 38 So.3d 274, 279). When
the words of a contract are clear and explicit and lead to no
absurd consequences, no further interpretation may be made in
search of the parties' intent. Id. (citing La.
C.C. art. 2046). Common intent is determined, therefore, in
accordance with the general, ordinary, plain and popular
meaning of the words used in the contract. Id.
(citing Prejean, 38 So.3d at 279).
when a clause in a contract is clear and unambiguous, the
letter of that clause should not be disregarded under the
pretext of pursuing its spirit, as it is not the duty of the
courts to bend the meaning of the words of a contract into
harmony with a supposed reasonable intention of the parties.
Clovelly, supra. However, even when the
language of the contract is clear, courts should refrain from
construing the contract in such a manner as to lead to absurd
consequences. Id. (citing Amend v. McCabe,
95-0316 (La. 12/1/95), 664 So.2d 1183, 1187; La. C.C. art.
2046). Most importantly, a contract must be interpreted in a
common-sense fashion, according to the words of the contract
their common and usual significance. Id. (citing
Prejean, 38 So.3d at 279). Moreover, a contract
provision that is susceptible to different meanings must be
interpreted with a meaning that renders the provision
effective, and not with one that renders it ineffective.
Id. (citing Amend, 664 So.2d at 1187; La.
C.C. art. 2049). Each provision in a contract must be
interpreted in light of the other provisions so that each is
given the meaning suggested by the contract as a whole.
Id. (citing La. C.C. art. 2050; Amend, 664
So.2d at 1187.)
insurance policy should not be interpreted in an unreasonable
or a strained manner so as to enlarge or to restrict its
provisions beyond what is reasonably contemplated by its
terms or so as to achieve an absurd conclusion.
Safeway, supra. Insurers, like any other
contracting party, are entitled to contractually limit
coverage in any manner they desire, so long as the
limitations do not conflict with statutory provisions or
public policy. Id.
these precepts in mind, we now turn to the relevant
contracts. First we look to the contract entered into between
Lafayette and Woodward.
October 11, 2007, Lafayette and Woodward entered into a
contract that provides, in its entirety: "Lafayette
Insurance Company, as the insurer of Stewart Interior
Contractors, LLC, has agreed to defend and indemnify Carl E.
Woodward, LLC in the above-referenced matter up to the policy
limits of the insurance contract between Lafayette Insurance
Company and Stewart Interior Contractors, LLC."
maintains that this obligates Lafayette to defend and
indemnify Woodward up to the monetary policy limits of the
insurance contract, without any other terms, conditions,
reservations, or limitations. By contrast, Lafayette argues
that this agreement is derivative of and, therefore, limited
by its insurance policy with Stewart and that we ...