KERRI A. LATOUR, ET AL.
ALLSTATE INS. CO., ET AL.
APPLICATION FOR SUPERVISORY WRITS FROM THE FIFTEENTH JUDICIAL
DISTRICT COURT PARISH OF LAFAYETTE, NO. 2015-4132-F HONORABLE
DAVID MICHAEL SMITH, DISTRICT JUDGE
William Penny, Jr. Christopher Shannon Hardy Penny &
Hardy COUNSEL FOR DEFENDANT/APPLICANT: Allstate Insurance
Christopher Parnell Lawler Donovan & Lawler COUNSEL FOR
DEFENDANT/RESPONDENT: Debbie Derouen
Michael A. Rainey Attorney at Law COUNSEL FOR
PLAINTIFFS/RESPONDENTS: Stephen E. Latour, Kerri A. Latour,
Individually and on behalf of Averi G. Latour
composed of Sylvia R. Cooks, Marc T. Amy, Elizabeth A.
Pickett, Shannon J. Gremillion, and Candyce G. Perret,
Pickett, Judge, dissents for the reasons assigned by Judge
SHANNON J. GREMILLION JUDGE
and Kerri Latour filed suit against Debbie Derouen and
Allstate Insurance Company, her homeowners' insurer,
seeking damages for bruises and bite marks suffered by their
fifteen-month-old daughter, Averi Latour, on August 25, 2014,
while she was in the care of Ms. Derouen. Ms. Derouen
provided daycare services for children in her home in
exchange for compensation. On the day Averi was bitten, Ms.
Derouen was caring for two of her grandchildren in addition
to six other children, including Averi. When the children
were napping, Ms. Derouen heard a child crying and went to
check on the child. Upon entering the room where the children
were napping, she found Averi crying and two other children,
one sitting on either side of her. Averi had been bitten on
both of her legs and her sides. One of the children sitting
by Averi was Ms. Derouen's grandchild; the other child
was one she regularly cared for. Ms. Derouen's testimony
indicates Averi may have been bitten by either or both of
these two children.
filed a motion for summary judgment, seeking to have the
Latours' claims against it dismissed. Allstate based its
motion on a provision of its policy which excludes liability
coverage for injuries "arising out of . . . business
activities of any insured." It argues that because Ms.
Derouen was providing daycare services for Averi when Averi
was injured by another child in her care, Averi's
injuries arose out of her business activities; therefore, the
Latours' claims are excluded from the personal liability
coverage provision of its policy.
Latours asserted to the trial court that Averi was bitten by
Ms. Derouen's grandchild and that because Allstate's
policy definition of "business" excepts daycare
services for an insured's relatives from the definition
of business activities, the exclusion is inapplicable.
Therefore, they urged that a genuine issue of material fact
exists as to whether Averi's injuries arose out of Ms.
Derouen's daycare business and that this issue precludes
summary judgment. They also argued that language contained in
Allstate's premises liability exclusion confirms coverage
for Averi's injuries or, in the alternative, creates an
ambiguity which also precludes summary judgment.
trial court denied Allstate's motion, finding that the
difference between the pertinent language of the personal
liability exclusion as compared to the premises liability
exclusion of the policy "create[d] an issue."
Allstate filed a writ application, seeking reversal of the
trial court's judgment and the grant of summary judgment
in its favor. We granted writs and ordered briefing.
Latour v. Allstate Ins. Co., 18-395 (La.App. 3 Cir.
8/9/18) (unpublished opinion). For the reasons that follow,
we grant Allstate's requested relief.
the denial of a motion for summary judgment is an
interlocutory ruling from which no appeal may be taken, the
only practical remedy available to avoid a possibly useless
trial on the merits is to request that the appellate court
exercise its supervisory jurisdiction to review the propriety
of this ruling." Breaux v. Cozy Cottages,
LLC, 14-597, p. 4 (La.App. 3 Cir. 11/12/14), 151 So.3d
183, 187. "Ordinarily, an application for supervisory
writs is the appropriate vehicle for the review of an
interlocutory judgment." McGinn v. Crescent City
Connection Bridge Auth., 15-165, p. 4 (La.App.
4 Cir. 7/22/15), 174 So.3d 145, 148.
On appeal, summary judgments are reviewed de novo. Magnon
v. Collins, 98–2822 (La.7/7/99), 739 So.2d 191.
Thus, the appellate court asks the same questions the trial
court asks to determine whether summary judgment is
appropriate. Id. This inquiry seeks to determine
whether any genuine issues of material fact exist and whether
the movant is entitled to judgment as a matter of law.
La.Code Civ.P. art. 966(B) and (C). This means that judgment
must be rendered in favor of the movant if the pleadings,
depositions, answers to interrogatories, admissions on file,
and affidavits show a lack of factual support for an
essential element of the opposing party's claim.
Id. If the opposing party cannot produce any
evidence to suggest that he will be able to meet his
evidentiary burden at trial, no genuine issues of material
fact exist. Id.
Material facts are those that determine the outcome of the
legal dispute. Soileau v. D & J Tire, Inc.,
97–318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818,
writ denied, 97–2737 (La.1/16/98), 706 So.2d
979. In deciding whether facts are material to an action, we
look to the applicable substantive law. Id. Finally,
summary judgment procedure is favored and designed to secure
the just, speedy, and inexpensive determination of every
action. La.Code Civ.P. art. 966(A)(2).
Am. Zurich Ins. Co. v. Caterpillar, Inc., 12-270,
pp. 4-5 (La.App. 3 Cir. 10/3/12), 99 So.3d 739, 742-43. When
considering a motion for summary judgment, the judge should
not weigh the evidence or determine the truth of the matter;
instead, he must determine whether there is a genuine issue
of triable fact. Larson v. XYZ Ins. Co., 16-745 (La.
5/3/17), 226 So.3d 412. "All doubts should be resolved
in the non-moving party's favor." Id. at
An insurer seeking to avoid coverage through summary judgment
bears the burden of proving that some provision or exclusion
applies to preclude coverage. The issue of whether an
insurance policy, as a matter of law, provides or precludes
coverage is a dispute that can be resolved on summary
judgment. However, summary judgment declaring a lack of
coverage under an insurance policy may only be rendered if
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 could be
Chenevert v. Allstate Prop. & Cas. Ins. Co.,
17-56, p. 4 (La.App. 3 Cir. 10/11/17), 229 So.3d 937, 940
motion for summary judgment is premised upon the following
pertinent provisions of its policy titled "Coverage X
Family Liability Protection":
Allstate will pay damages for which an insured
person becomes legally obligated to
pay because of bodily injury or
property damage arising from an occurrence
to which this policy applies, and is covered by this part of
Losses We Do Not Cover Under Coverage X:
12. We do not cover bodily injury or property damage arising
out of the past or present business activities of an insured
in Green ex rel. Peterson v. Johnson, 14-292, p. 4
(La. 10/15/14), 149 So.3d 766, 770-71 (citation omitted), our
supreme court reviewed the principles of insurance contract
interpretation and explained:
[C]ertain elementary legal principles apply in analyzing an
insurance policy. First and foremost is the rule that an
insurance policy is a contract between the parties and should
be construed using the general rules of interpretation of
contracts set forth in the Civil Code. According to those
rules, the responsibility of the judiciary in interpreting
insurance contracts is to determine the parties' common
intent; this analysis is begun by reviewing the words of the
insurance contract. When the words of an insurance contract
are clear and explicit and lead to no absurd consequences, no
further interpretation may be made in search of the
parties' intent, and courts must enforce the contract as
written. The determination of whether a contract is clear or
ambiguous is a question of law.
provisions in insurance contracts are strictly construed
against the insurer, and any ambiguity is construed in favor
of the insured." Ledbetter v. Concord Gen.
Corp., 95-809, p. 4 (La. 1/6/96), 665 So.2d 1166, 1169,
amended, 95-809 (La. 4/18/96), 671 So.2d 915.
Nonetheless, the rule of strict construction does not
"authorize a perversion of language, or the exercise of
inventive powers for the purpose of creating an ambiguity
where none exists[.]" Muse v. Metro. Life Ins.
Co., 193 La. 605, 614, 192 So. 72, 75 (1939). Moreover,
insurance companies have the right to limit coverage in any
manner they choose, if the limitations imposed do not
conflict with statutory provisions or public policy.
Reynolds v. Select Props., Ltd., 93-1480 (La.
4/11/94), 634 So.2d 1180.
Latours argue that the focus should be on the source of their
child's injuries. Because the probable source of the
child's bite was not a child for whose care the homeowner
was compensated, the Latours argue that the injury did not
"arise out of" the operation of a daycare facility
in Ms. Derouen's home per the terms of the Allstate
policy. We disagree.
is purchased to protect the insured against exposure from
liability. This principle is embodied in the insuring
agreement, which, in this case, provides, "Subject to
the terms, conditions and limitations of this policy,
Allstate will pay damages which an
insured person becomes legally
obligated to pay because of bodily
injury or property damage arising
from an occurrence to which this policy
applies, and is covered by this part of the policy."
Liability insurance payment is always predicated upon the
insured's legal liability. In this matter, the
allegations against the homeowner involve failure to
supervise "the minor child," which, throughout the
petition, refers to the injured child. The risk that a minor
child would be injured at the operator's home is
precisely the risk Allstate avoided in excluding coverage for
operating a daycare. The acts or omissions of the
homeowner/insured is the proper focus in determining whether
the exclusion applies. This approach mirrors those previously
used in similar cases, and it provides a more concrete
foundation upon which subsequent homeowners and insurers can
structure their dealings in the future.
v. Massey, 00-313 (La.App. 5 Cir. 3/14/01), 783 So.2d
453, involved a child injured at a home-based daycare
facility while playing on a trampoline that had been
purchased by the homeowner for the use of her children.
However, she allowed the daycare charges to play on ...