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Guste v. Lirette

Court of Appeals of Louisiana, First Circuit

June 4, 2018


          On Appeal from The 32nd Judicial District Court, Parish of Terrebonne, State of Louisiana Trial Court No. 168, 515 The Honorable John R. Walker, Judge Presiding

          Robert S. Reich Marva Jo Wyatt Lawrence R. Plunkett Jr. Metairie, Louisiana Attorneys for Defendants/ Appellants, Earl Albert Lirette III and Tiger Audio, LLC

          Troy Allen Broussard Lafayette, Louisiana Attorney for Defendant/Appellee, Montpelier U.S. Insurance Company

          James F. Kreihs Colin J. Lagarde Steven J. Rando New Orleans, Louisiana Attorneys for Plaintiffs, Ronald Guste and Betty Anne Guste


          CRAIN, J.

         The defendants appeal a summary judgment dismissing a third-party demand seeking insurance coverage and a defense from their liability insurer. We affirm.


         This proceeding arises out of an altercation between Ronald P. Guste and Earl Albert Lirette III that occurred at Lirette's business, Tiger Audio, L.L.C. Guste and his wife, Betty Anne Guste, sued Lirette and Tiger Audio seeking damages for injuries allegedly sustained in the incident. According to his petition, Guste entered the customer showroom of Tiger Audio to speak with Lirette about wages owed to Guste's grandson. As Guste approached Lirette, who was standing behind a counter, the following allegedly occurred:

Earl Lirette, III, came from behind the counter and violently assaulted and battered your Petitioner, Ronald Guste, throwing him to the ground, causing severe injuries to his mind and body, including but not limited to a fractured hip, which rendered Ronald Guste bedridden and has caused permanent injury. [Emphasis removed.]

         Lirette and Tiger Audio filed a third-party demand against their general liability insurer, Montpelier U.S. Insurance Company, contending Montpelier's policy covered the alleged liability of Lirette and Tiger Audio and obligated Montpelier to defend them in the litigation. Guste also amended his petition to assert a direct claim against Montpelier as the alleged liability insurer for Lirette and Tiger Audio.[1]

         Montpelier filed a motion for summary judgment seeking dismissal of all claims against it, relying in relevant part on a policy exclusion applicable to bodily injury "arising out of assault and/or battery." The trial court granted the motion and, in a judgment signed April 19, 2017, dismissed all claims against Montpelier. Lirette and Tiger Audio appeal.[2]


         After an opportunity for adequate discovery, 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 mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria governing the trial court's determination of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La.App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

         If the mover will bear the burden of proof at trial on the issue before the court on 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); Smith v. Moreau, 17-0003 (La.App. 1 Cir. 6/2/17), 222 So.3d 761, 765. When a motion is made and properly supported, an adverse party may not rest on the mere allegations or denials of his pleading; his response, by affidavits or as otherwise provided by law, must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. See La. Code Civ. Pro. art. 967B.

         Insurance Coverage under Montpelier 's Policy

         Summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See La. Code Civ. Pro. art. 966E; Smith, 222 So.3d at 765; Simmons v. Weiymann, 05-1128 (La.App. 1 Cir. 8/23/06), 943 So.2d 423, 425. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation under which coverage could be afforded when applied to the undisputed material facts shown by the evidence supporting the motion. Smith, 222 So.3d at 765; Rider v. Ambeau, 11-0532 (La.App. 1 Cir. 2/1/12), 100 So.3d 849, 854. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and impose and enforce reasonable conditions upon the policy obligations they contractually assume. Hickey v. Centenary Oyster House, 97-1074 (La. 10/20/98), 719 So.2d 421, 425. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some exclusion applies to preclude coverage. Smith, 222 So.3d at 765; Lewis v. Jabbar, 08-1051 (La.App. 1 Cir. 1/12/09), 5 So.3d 250, 254.

         Montpelier relies, in relevant part, on the following exclusion added to the policy by an endorsement:[3]

         ASSAULT AND ...

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