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Dorsey v. Purvis Contracting Group, LLC

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2017

IRMA DORSEY
v.
PURVIS CONTRACTING GROUP, LLC AND JON P. PURVISIRMA DORSEY IRMA DORSEY
v.
SCOTTSDALE INSURANCE COMPANY, ET AL

         ON 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., JUDGE PRESIDING

          PLAINTIFF/APPELLANT, IRMA DORSEY In Proper Person

          COUNSEL FOR DEFENDANT/APPELLEE, SCOTTSDALE INSURANCE COMPANY Jay R. Sever Jennifer R. Kretschmann

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert M. Murphy.

          FREDERICKA HOMBERG WICKER JUDGE

         Plaintiff-homeowner 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff, 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.[1] 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 performed.[2]

         In her 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.

         On 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 mold.[3]

         In its 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.[4]

         In her 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 work performed.

         Plaintiff 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 of Contractors.

         Scottsdale 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. art. 966(A)(4).

         In its 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.

         At the 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.

         LAW AND ANALYSIS

         A 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). Id.

         A 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.

         Louisiana 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)).

         Appellate 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., supra.

         Upon 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 judgment.

         Concerning 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.

         The 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[5]" 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 the policy.

         The 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 ...


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