FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-08358,
DIVISION "0" Honorable Nakisha Ervin-Knott, JUDGE
Welborn Reisman S. Gene Fendler Dana M. Douglas Patrick
Reagin LISKOW & LEWIS COUNSEL FOR PLAINTIFF/APPELLANT
H. Schmid Charles B. Long Travis L. Bourgeois DEGAN,
BLANCHARD & NASH COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Edwin A. Lombard, Judge Joy Cossich
Lobrano, Judge Tiffany G. Chase
COSSICH LOBRANO JUDGE.
Mann, plaintiff/appellant, has appealed from a summary
judgment granted in favor of Evanston Insurance Company
("Evanston"). Evanston is one of the insurers of
Tim Clark Construction LLC ("TCC"), the company
hired by Mann to raise her home following Hurricane Katrina
in 2005. After a review of the record and applicable law, we
vacate the judgment of the district court and remand the
matter for further proceedings.
October, 2010, Mann entered into a contract with TCC to
elevate her home (hereinafter "the project"). This
was done after Hurricane Katrina in conjunction with the
state's Hazard Mitigation Grant Program.
a series of insurers; Evanston insured TCC for the period of
March 3, 2014 to March 3, 2015. Evanston's policy
contains the commonly-used commercial general liability form,
that includes coverage for bodily injury and property damage
(coverage A), which is at issue here. Briefly, this is an
"occurrence policy" requiring that the bodily
injury and/or property damage occur during the policy period.
In addition, the policy contains a pre-existing injury, loss
or damage endorsement, excluding from coverage any damage or
loss that began to occur "from an occurrence which first
occurred, began to occur, or is alleged to have occurred
prior to the inception date of this policy."
undisputed that TCC began work on the project at the end of
2011. On March 12, 2012, TCC obtained a certificate of
occupancy and completion. Elevation studies performed in
March allegedly showed that the house was not elevated to
proper levels. Mann informed TCC on June 28, 2012, that it
had not completed the project as agreed, that the work was
improperly performed, and that the house failed inspection.
In her petition, Mann alleged that TCC caused physical
damages to her home and property, which caused her emotional
distress, both of which continue to this day.
petition, as confirmed in her deposition, Mann maintains that
she first noted damage to her property in the fall of 2011.
The second phase of the project took place in 2012, in which
TCC attempted to correct the damage it caused. After more
problems, the third phase of the project took place in 2013.
filed a motion for summary judgment based on Mann's
deposition and the express language of the Evanston policy,
arguing that its policy did not provide coverage for any of
Mann's damages; it prayed for a complete dismissal of all
Mann's claims against it with prejudice. Mann opposed the
motion and filed a cross-motion for partial summary judgment
against Evanston, in which she made 35 requests for relief.
Both motions were heard by the district court on September 1,
2017. The transcript of the hearing is in the appellate
record. The district court reached a ruling at the hearing
that was memorialized in a September 12, 2017 judgment.
district court found that Evanston had carried its burden of
proof on summary judgment and that the pre-existing
endorsement was applicable, unambiguous, and enforceable.
Thus, judgment was granted in Evanston's favor dismissing
all of Mann's claims against it with prejudice.
regard to Mann's cross-motion for summary judgment, the
district court granted some of the requests for relief
against Evanston, denied others, while some were deferred,
presumably until trial. A vast majority of Mann's claims
concerned the interpretation of Evanston's policy
noted by Mann, the district court's judgment is patently
inconsistent. While it dismissed all of
Mann's claims against Evanston with prejudice, it granted
certain items of relief in Mann's favor under the
Evanston policy. Evanston cannot be ...