RONALD P. GUSTE HUSBAND OF/AND BETTY ANNE GUSTE
EARL ALBERT LIRETTE III, PRESIDENT OF/AND TIGER AUDIO, L.L.C., AND EARL ALBERT LIRETTE JR.
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
S. Reich Marva Jo Wyatt Lawrence R. Plunkett Jr. Metairie,
Louisiana Attorneys for Defendants/ Appellants, Earl Albert
Lirette III and Tiger Audio, LLC
Allen Broussard Lafayette, Louisiana Attorney for
Defendant/Appellee, Montpelier U.S. Insurance Company
F. Kreihs Colin J. Lagarde Steven J. Rando New Orleans,
Louisiana Attorneys for Plaintiffs, Ronald Guste and Betty
BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
defendants appeal a summary judgment dismissing a third-party
demand seeking insurance coverage and a defense from their
liability insurer. We affirm.
AND PROCEDURAL HISTORY
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
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.]
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
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
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.
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.
Coverage under Montpelier 's Policy
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.
relies, in relevant part, on the following exclusion added to
the policy by an endorsement: