APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 666-573 C/W 739-671,
DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR.,
PLAINTIFF/APPELLANT, IRMA DORSEY In Proper Person
COUNSEL FOR DEFENDANT/APPELLEE, SCOTTSDALE INSURANCE COMPANY
Jay R. Sever Jennifer R. Kretschmann
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Robert M. Murphy.
FREDERICKA HOMBERG WICKER JUDGE
appeals the trial court's summary judgment in favor of
defendant-insurer for damages arising out of her
contractor-defendant's alleged substandard work performed
on her home following Hurricane Katrina. For the following
reasons, we affirm the trial court's judgment.
AND PROCEDURAL BACKGROUND
Irma Dorsey, filed suit in the 24th Judicial
District Court for the Parish of Jefferson against Jon
Purvis, individually, Purvis Contracting Group, LLC
(hereinafter collectively "Purvis"), its insurer,
Scottsdale Insurance Company, and various subcontractors, for
damages arising out of work performed during the renovation
of plaintiff's home following Hurricane
Katrina. In her petition, plaintiff alleged that
her home sustained significant damages during Hurricane
Katrina and that, on October 26, 2007, she contracted with
Purvis to perform a complete rehabilitation and renovation of
her home for the total sum of $78,643.88. Plaintiff further
alleged that, after repairs began, Purvis sought an
additional $35,000.00 over the contract price for the work
petition, plaintiff claimed that some of the work included in
the contract was not performed as required under the contract
and other work was not performed in a workmanlike manner.
Specifically, plaintiff claimed that the HVAC system in her
home was not repaired properly; the wooden frame of her
garage doors was not replaced; her front doors were not
varnished or refinished; the plumbing lines repaired have
burst or leaked; the exterior walls were not sufficiently
insulated; one concrete stair is missing from the patio area;
and the toilet and vent in her bathroom, the doorbell, and
the garbage disposal have never functioned properly.
Plaintiff additionally alleged in her petition that Purvis
misrepresented that he was a licensed general contractor
rather than a licensed home improvement contractor, which is
distinguishable based upon the total repair contract price
permitted. Plaintiff subsequently alleged that her home was
tested at elevated levels of mold, which she claims has
affected her health and caused mental distress.
March 3, 2017, Scottsdale filed a motion for summary
judgment, asserting that plaintiff's claims are excluded
under the terms of the general commercial liability insurance
policies issued to Purvis. Specifically, Scottsdale claimed
that it issued four policies to Purvis that exclude coverage
for (1) plaintiff's claims for damage to Purvis' work
product or the cost to remediate Purvis' work product;
(2) the cost of reimbursement for incomplete work; (3) the
cost to repair faulty work when the faulty work does not
cause damage to other property; (4) plaintiff's claims of
mental anguish, inconvenience, or loss of income; (5) any
damages caused by fraud or unfair trade practices; and (6)
plaintiff's alleged damages resulting from
memorandum in support of its motion for summary judgment,
Scottsdale asserted that it issued four policies to Purvis
(policy numbers CLS1291796 (the 2006 policy), CLS1401402 (the
2007 policy), CLS1511135 (the 2008 policy), and CPS1048078
(the 2009 policy)). Scottsdale attached an authenticated copy
of each policy to its motion for summary judgment. Plaintiff
filed an opposition to Scottsdale's motion for summary
judgment. In her opposition, plaintiff acknowledged that the
"only policy in question for this matter is Policy
#CLS1401302, which covered Purvis from July 25, 2007 to July
25, 2008," the time period during which Purvis performed
work on her home.
opposition, plaintiff claimed that she suffered the following
damages: (1) an advertising injury arising out of Purvis'
advertisement as a Louisiana state licensed general
contractor and not a home improvement contractor; (2)
personal injury, including mold exposure, mental anguish, and
distress; (3) property damage to her home involving her
plumbing, electrical, and HVAC systems, as well as the
installation of an insufficient amount of insulation in her
home and (4) the loss of use of her home during subsequent
repair as a result of Purvis' incomplete and improper
attached various exhibits to her opposition to
Scottsdale's motion for summary judgment, which included:
(1) the Home Improvement Contract between Plaintiff and
Purvis; (2) Home Inspection Report; (3) Gracie Hart
Electrical Inspection Report; (4) Mr. Cool repair estimate;
(5) JC Services AC, LLC report; (6) Gurtler Bros. Inspection
Report; (7) Winston Wood Inspection Report and Amended
Report; (8) Winston Wood's curriculum vitae; (9) excerpts
from Scottsdale Insurance 2007 policy; (10) Purvis
Contracting Group Home Improvement Contractor License; and
(11) correspondence from the Louisiana State Licensing Board
filed a reply memorandum to plaintiff's opposition. In
its reply memorandum, Scottsdale objected to the
admissibility of all of plaintiff's exhibits attached to
her opposition to Scottsdale's motion for summary
judgment, contending that the attachments were not admissible
summary judgment evidence as provided in La. C.C.P. art.
966(A)(4). Scottsdale asserted that plaintiff's exhibits
were not authenticated by affidavit and did not otherwise
fall under the exclusive list of documents and evidence
admissible in a summary judgment proceeding under La. C.C.P.
reply memorandum, Scottsdale further addressed
plaintiff's allegation that she sustained an
"advertising injury," which Scottsdale asserted
plaintiff raised for the first time in her opposition to its
motion for summary judgment. Nevertheless, concerning
plaintiff's claims that Purvis falsely advertised its
qualifications, Scottsdale first argued that the policy
provides no coverage for the alleged injuries arising from
false advertisement or unfair practices. Scottsdale further
pointed to its policy's "Material Published with
Knowledge of Falsity" exclusion, which provides that
coverage is excluded for a "personal and advertising
injury" arising out of oral or written publication of
material, if done by or at the direction of the insured with
knowledge of its falsity. Scottsdale again asserted that the
policy in question provides no coverage for any of
plaintiff's claims asserted.
April 7, 2017 hearing on Scottsdale's motion for summary
judgment, counsel for Scottsdale orally re-urged its
objection to the exhibits attached to plaintiff's
opposition to its motion for summary judgment. The trial
judge found that plaintiff's exhibits were not admissible
summary judgment evidence under La. C.C.P. art. 966(A)(4) and
did not consider the attachments in rendering his judgment on
Scottsdale's motion. On April 17, 2017, the trial judge
issued a written judgment granting Scottsdale's motion
for summary judgment and dismissing all of plaintiff's
claims against it with prejudice. Plaintiff timely appeals
the summary judgment, contending that the trial court erred
in its determination that the Scottsdale policy excludes
coverage for all of plaintiff's claims.
motion for summary judgment is a procedural device used to
avoid a full-scale trial when there is no genuine issue of
material fact. Collins v. Home Depot, U.S.A. Inc.,
16-516 (La. App. 5 Cir. 3/15/17), 215 So. 3d 918, 920;
Bell v. Parry, 10-369 (La. App. 5 Cir. 11/23/10), 61
So.3d 1, 2. The summary judgment procedure is favored and is
designed to secure the just, speedy, and inexpensive
determination of every action. La. C.C.P. art. 966(A)(2).
motion for summary judgment "shall be granted if the
motion, memorandum, and supporting documents show that there
is no genuine issue as to material fact and that the mover is
entitled to judgment as a matter of law." La. C.C.P.
art. 966(A)(3); see also Chauvin v. Shell Oil Co.,
16-609 (La. App. 5 Cir. 10/25/17), 2017 La. App. LEXIS 1923.
"[I]f the mover will not bear the burden of proof at
trial on the issue that is before the court on the motion for
summary judgment, the mover's burden on the motion does
not require him to negate all essential elements of the
adverse party's claim, action, or defense, but rather to
point out to the court the absence of factual support for one
or more elements essential to the adverse party's claim,
action, or defense." La. C.C.P. art. 966(D)(1).
"The burden is on the adverse party to produce factual
support sufficient to establish the existence of a genuine
issue of material fact or that the mover is not entitled to
judgment as a matter of law." Id.
Code of Civil Procedure art. 966 was amended and reenacted by
La. Acts 2015, No. 422, § 1, with an effective date of
January 1, 2016. The amended version of Article 966 governs
the summary judgment proceedings in this case. La. C.C.P.
art. 966(A)(4) now provides, "[t]he only documents that
may be filed in support of or in opposition to the motion are
pleadings, memoranda, affidavits, depositions, answers to
interrogatories, certified medical records, written
stipulations, and admissions." The legislative comments
to the amended version of Article 966 clarify that
Subparagraph (A)(4), which is new, sets forth the exclusive
list of documents that may be filed in support of or in
opposition to a motion for summary judgment, and
intentionally does not allow the filing of documents that are
not included in the exclusive list, such as photographs,
pictures, video images, or contracts, unless they are
properly authenticated by an affidavit or deposition to which
they are attached. Raborn v. Albea, 16-1468 (La. 1
Cir. App.5/11/17), 221 So.3d 104, 111 (quotations
omitted)(citing La. C.C.P. art. 966, cmt. (c) (2015)).
courts review a judgment granting or denying a motion for
summary judgment de novo. Thus, appellate courts ask
the same questions the trial court does in determining
whether summary judgment is appropriate: whether there is any
genuine issue of material fact, and whether the mover is
entitled to judgment as a matter of law. Sarasino v.
State, 16-408 (La. App. 5 Cir. 03/15/17), 215 So.3d 923,
927-28; Collins v. Home Depot, U.S.A. Inc.,
our review of the record, we first find that the trial court
was correct in its determination that the attachments to
plaintiff's opposition to Scottsdale's motion for
summary judgment, which are not authenticated by affidavit or
deposition as required under La. C.C.P. art. 966(A)(4), are
not admissible summary judgment evidence and may not be
considered in connection with the motion for summary
the determination of coverage under an insurance policy, the
Louisiana Supreme Court has stated:
An insurance policy is a conventional obligation that
constitutes the law between the insured and the insurer, and
the agreement governs the nature of their relationship. La.
C.C. art. 1983. An insurance policy is a contract, which must
be construed employing the general rules of interpretation of
contracts. Reynolds, 634 So.2d at 1183; La. C.C.
arts. 2045-2057. If the insurance policy's language
clearly expresses the parties' intent and does not
violate a statute or public policy, the policy must be
enforced as written. However, if the insurance policy is
susceptible to two or more reasonable interpretations, then
it is considered ambiguous and must be liberally interpreted
in favor of coverage. Reynolds, supra; Newby v.
Jefferson Parish Sch. Bd., 99-0098 (La. App. 5 Cir.
6/1/99), 738 So.2d 93.
Liability insurance policies should be interpreted to effect,
rather than to deny coverage. Yount v. Maisano, 627
So.2d 148, 151 (La. 1993). However, it is well-settled that
unless a statute or public policy dictates otherwise, the
insurers may limit liability and impose such reasonable
conditions or limitations upon their insureds.
Reynolds, 634 So.2d at 1183; Livingston Parish
School Board v. Fireman's Fund American Insurance
Company, 282 So.2d 478 (La. 1973); Oceanonics, Inc.
v. Petroleum Distributing Company, 292 So.2d 190 (La.
1974). In these circumstances, unambiguous provisions
limiting liability must be given effect. Jones v. MFA
Mutual Insurance Company, 398 So.2d 10 (La. App. 3 Cir.
1981); Snell v. Stein, 261 La. 358, 259 So.2d 876
(La. 1972); Niles v. American Bankers Insurance
Company, 258 So.2d 705 (La. App. 3 Cir. 1972). With that
stated, we note that the insurer bears the burden of proving
that a loss falls within a policy exclusion. Blackburn v.
National Union Fire Ins. Co., 00-2668 (La. 4/3/01), 784
So.2d 637, 641.
Supreme Servs. & Specialty Co. v. Sonny Greer,
Inc., 06-1827 (La. 05/22/07), 958 So.2d 634, 638-39.
2007 Scottsdale CGL policy at issue provides coverage for
"those sums that the insured becomes legally obligated
to pay as damages because of "bodily injury" or
"property damage" if such injury or damage is
caused by an "occurrence" that takes place in the
coverage territory and during the policy period. The policy
at issue further provides coverage for damages arising out of
a "personal and advertising injury" as defined in
policy contains exclusions, however, which Scottsdale
contends exclude coverage for all of plaintiff's claims
in this case. In support of its motion for summary judgment
as to the ...