APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 762-957, DIVISION
"B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING
PLAINTIFF/APPELLEE, ASI FEDERAL CREDIT UNION Philip D.
Nizialek Jacqueline M. Brettner Sarah E. Stogner
DEFENDANT/APPELLANT, CERTAIN UNDERWRITERS AT LLOYD'S OF
LONDON SYNDICATE 1414 SUBSCRIBING TO POLICY FINFR1503374 Gary
A. Hemphill Arthur R. Kraatz Justin C. Warner
composed of Judges Jude G. Gravois, Marc E. Johnson, and John
J. Molaison, Jr.
J. MOLAISON, JR. JUDGE
declaratory judgment action involving an insurance coverage
dispute under an Armored Car Cargo Liability Policy,
defendants, Certain Underwriters at Lloyd's London
Subscribing to Policy FINFR1503374
("Underwriters"), appeal the trial court's
December 14, 2017 judgment granting a motion for partial
summary judgment filed by plaintiff, ASI Federal Credit Union
("ASI"), and denying a motion for summary judgment
filed by Underwriters. For the reasons that follow, finding the
admissible evidence insufficient to resolve all genuine
issues of material fact regarding whether Underwriters'
policy provides or precludes coverage to ASI, we reverse the
trial court's judgment in part, affirm in part, and
remand the matter for further proceedings.
BACKGROUND AND PROCEDURAL HISTORY
18, 2016, ASI filed suit against Underwriters seeking to have
the court declare that the Armored Car Cargo Liability Policy
issued by Underwriters to its insured, LeoTran Armored
Security, LLC ("LeoTran"), affords coverage for a
loss sustained by ASI as a result of LeoTran's tortious
acts. According to ASI's petition, ASI is a
not-for-profit local credit union headquartered in Jefferson
Parish, and uses automated teller machines
("ATMs"), both at its branch offices and at several
of its freestanding locations. In 2012, ASI outsourced the
servicing of its ATMs to a third party contractor, Bank
Equipment Solutions/ATM Worldwide, LLC ("ATMWW"),
purportedly pursuant to a Brand ATM Agreement. In turn, ATMWW
contracted with armored car carriers to service ASI's
ATMs by transporting cash to and from ASI's ATMs. ATMWW
entered into such a service agreement with LeoTran in August
of 2013 to service ASI's ATMs, which LeoTran did until
December 2015. Though no contractual privity existed between
ASI and LeoTran, relying on La. C.C. arts. 1978 and 1982, ASI
alleged that, pursuant to ASI's contract with ATMWW and
ATMWW's contract with LeoTran, ASI was LeoTran's
customer, and a third party beneficiary to the contract
between ATMWW and LeoTran.
a Louisiana limited liability company that provides, among
other things, armored car security services, is owned by its
founder and principal, Leonard Tolleson. According to ASI,
Mr. Tolleson-on behalf of the company, and in accordance with
the licensing requirements for armored car carriers set forth
in La. R.S. 37:3276(E), in addition to the obligations
LeoTran assumed under its service agreement with
ATMWW-purchased an Armored Car Cargo Liability Policy from
Underwriters with an effective policy period of April 15,
2015 to April 15, 2016 (the "Policy"). ASI avers
that Mr. Tolleson purchased the Policy to cover LeoTran's
liability associated with servicing ATMs and other enumerated
risks associated with its business operations.
petition, ASI alleges that in December 2015, employees of
LeoTran picked up $100, 000 of ASI cash from the Federal
Reserve for which there has never been an accounting.
Additionally, ASI avers that LeoTran employees removed
approximately $593, 380 in cash from several ASI ATMs it
serviced, and absconded with an additional $688, 820 in case
reserves that LeoTran was holding in trust for future cash
delivery to the ASI ATMs it serviced. In total, ASI contends
that $1, 382, 200 of its money disappeared while in the care,
custody, and control of LeoTran. ASI reported the missing
funds to the Jefferson Parish Sheriff's Office after
which an investigation ensued. To date, ASI claims that $34,
200 has been recovered and returned to ASI, but $1, 348, 000
December 22, 2015, ATMWW submitted a claim to Underwriters on
behalf of ASI under the Policy seeking recovery of any and
all monies that were missing while in LeoTran's care. In
response to ASI's claim under the Policy, Underwriters
stated that "there is no relief that [Underwriters] can
provide [to ASI] at this stage." When Underwriters
refused to make payment to ASI under the Policy, ASI filed
the instant action seeking a declaratory judgment that
Underwriters has an obligation to provide insurance coverage
to ASI under the Policy for the loss of $1, 348, 000 of
ASI's money that purportedly went missing while in
LeoTran's care that has not been recovered or returned to
August 23, 2016, Underwriters filed an answer to ASI's
petition denying coverage and asserting various coverage
defenses. Before discovery had commenced, ASI moved for
partial summary judgment seeking a declaration that
Underwriters' policy provided coverage for its claims
against LeoTran. In response, Underwriters filed a
cross-motion for summary judgment, seeking dismissal of
ASI's claim. The parties' competing motions came for
hearing on October 19, 2017, after which the matter was taken
under advisement. Thereafter, on December 14, 2017, the trial
court issued judgment granting ASI's motion for partial
summary judgment finding the Policy provided coverage for
ASI's claim against Leotran; Underwriters'
cross-motion was denied. Incorporated in the December 14,
2017 judgment, without accompanying written reasons, the
trial court stated:
[T]he Court finds that property of ASI Federal Credit Union
was lost or damaged while in the care, custody, and control
of LeoTran, and that ASI Federal Credit Union was a customer
of LeoTran. Further, the Court finds that the Directors and
Officers Exclusion Clause is inapplicable to this matter.
now appeals the trial court's granting of ASI's
motion for partial summary judgment and denying its motion
for summary judgment. In particular, Underwriters argues that
the trial court erred by improperly admitting the affidavits
submitted by ASI to support its partial motion for summary
judgment when those affidavits were not based on the
affiants' personal knowledge; that the trial court erred
in finding that ASI met its threshold burden of establishing
that LeoTran is liable to it; and, that the trial court erred
in denying Underwriter's motion for summary judgment and
finding the Policy provides coverage for ASI's alleged
loss. For the following reasons, finding the admissible
summary judgment evidence insufficient to resolve all genuine
issues of material fact regarding whether the Policy either
provides or precludes coverage to ASI for its alleged loss,
we reverse the trial court's granting of ASI's motion
for partial summary judgment, affirm the trial court's
denial of Underwriters' motion for summary judgment, and
remand the matter for further proceedings.
courts review the granting of summary judgment de
novo using the same criteria governing the trial
court's consideration of whether summary judgment is
appropriate. Hogg v. Chevron USA, Inc., 09-2632 (La.
7/06/10), 45 So.3d 991, 996.
motion for summary judgment is a procedural device used to
avoid a full-scale trial where there is no genuine issue of
material fact. Bell v. Parry, 10-369 (La.App. 5 Cir.
11/23/10), 61 So.3d 1, 2. The summary judgment procedure is
designed to secure the just, speedy, and inexpensive
determination of every action. La. C.C.P. art. 966(A)(2). The
motion "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).
"The court may consider only those documents filed in
support of or in opposition to the motion for summary
judgment and shall consider any documents to which no
objection has been made." [Emphasis supplied.] La.
C.C.P. art. 966(D)(2).
affidavits submitted by the mover must be scrutinized
closely. Myers v. Omni Hotel, Inc., 94-2004 (La.App.
4 Cir. 4/13/95), 654 So.2d 771, 774. Moreover, supporting and
opposing affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein and the
basis of affiant's knowledge. La. C.C.P. art. 967(A). It
is not sufficient for an affiant to merely declare that he
has personal knowledge of a fact. South Central Bell Tel.
Co. v. Rouse Co. of Louisiana, 590 So.2d 801, 803
(La.App. 4th Cir. 1991).
party moving for summary judgment bears the burden of proof.
La. C.C.P. art. 966(D)(1). However, if the movant will not
bear the burden of proof at trial, the movant's burden on
a motion for summary judgment does not require him to negate
all essential elements of the adverse party's claim, 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. Id.;
Patrick v. Iberia Bank, 05-783 (La.App. 5 Cir.
3/14/06), 926 So.2d 632, 634. If the adverse party fails to
produce factual support sufficient to establish a genuine
issue of material fact, summary judgment should be granted.
La. C.C.P. art. 966(D)(1).
issue of whether an insurance policy, as a matter of law,
provides or precludes coverage is a dispute that can be
resolved properly within the framework of a motion for
summary judgment. Robinson v. Rockhill Ins. Co.,
13-860 (La.App. 5 Cir. 4/23/14), 139 So.3d 1031, 1032-1033.
Summary judgment declaring a lack of coverage under an
insurance policy may not be rendered unless there is no
reasonable interpretation of the policy, when applied to the
undisputed material facts shown by the evidence supporting
the motion, under which coverage should be afforded.
Id., 139 So.3d at 1033. ...