Appeal from The 23rd Judicial District Court,
Parish of Assumption, State of Louisiana Trial Court No. 34,
316 The Honorable Thomas J. Kliebert Jr., Judge Presiding
Leopold Z. Sher James M. Garner Peter L. Hilbert Jr. Neal J.
Kling Jeffrey D. Kessler Amanda R. Schenck New Orleans,
Louisiana Robert Ryland Percy III Gonzales, Louisiana Eric J.
Mayer Houston, Texas Travis J. Turner Gonzales, Louisiana
Attorneys for Defendant/Appellant, Texas Brine Company, LLC
E. Mercer Kourtney T. French New Orleans, Louisiana Attorneys
for Defendants/Appellees, Zurich American Insurance Company,
Steadfast Insurance Company, and American Guarantee &
Liability Insurance Company
BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
Brine Company, LLC appeals a summary judgment dismissing the
plaintiffs claims against certain liability insurers of Texas
Brine. In an answer to the appeal, the insurers assert the
trial court erred in denying their motion for summary
judgment seeking a dismissal of Texas Brine's incidental
demand against them. We affirm in part, reverse in part, and
render summary judgment in favor of the insurers.
AND PROCEDURAL HISTORY
one of several lawsuits arising out of a sinkhole in
Assumption Parish that developed on or about August 3, 2012,
following the collapse of a salt mine cavern. Florida Gas
Transmission Company sued Texas Brine, among other
defendants, alleging Texas Brine's salt mining operations
caused the collapse of the cavern and the resulting sinkhole,
which damaged two of Florida Gas's nearby pipelines.
Florida Gas also sued several liability insurers, including
Zurich American Insurance Company, alleging the insurers
issued policies providing coverage for Texas Brine's
alleged liability. Texas Brine filed an incidental demand
against Zurich, alleging it was obligated to provide Texas
Brine with indemnity and a defense in the litigation.
policy language limiting coverage to damage that "occurs
during the policy period," Zurich filed motions for
summary judgment asserting its "pre-2012 policies,"
the last of which expired on March 1, 2012, do not cover
Florida Gas's claims and do not require Zurich to provide
a defense to Texas Brine. In a judgment signed on September 13,
2017, the trial court granted summary judgment in favor of
Zurich, dismissing Florida Gas's claims against Zurich
with prejudice; however, the trial court denied the motion
with respect to Texas Brine's claims, stating in written
reasons that a genuine issue of material fact precluded
summary judgment on Zurich's duty to defend. Texas Brine
appealed the dismissal of Florida Gas's claims against
Zurich. Answering the appeal, Zurich asserts the
trial court erred in denying its motion as to Texas
arguments presented on appeal by Texas Brine and Zurich have
been addressed in a related appeal decided by this circuit,
Pontchartrain Natural Gas System v. Texas Brine Company,
LLC, 18-0244 (La.App. 1 Cir. 10/11/18), ___ So. 3d___,
which reviewed a similar motion for summary judgment filed by
Zurich and argued to the same trial court at the same hearing
as the present motion. In the related appeal, this court
affirmed a summary judgment dismissing a different plaintiffs
claims against Zurich, then reversed the trial court and
rendered summary judgment in favor of Zurich dismissing Texas
Brine's incidental demand against the insurer. See
Pontchartrain Natural Gas System, ___ So. 3d at___.
present case is not materially distinguishable from
Pontchartrain Natural Gas System. In support of its
motion on coverage, Zurich relies on the same evidence,
primarily the policy provision limiting coverage to damage
that "occurs during the policy period," and Florida
Gas's admissions during discovery that it is not aware of
any damage to its pipelines before the sinkhole appeared.
opposition to the motion, Texas Brine principally relies on
expert affidavits and a report, specifically focusing on one
expert's opinion that "earth movement. . .
could have damaged the underground pipelines earlier
than March 1, 2012." (Emphasis added.) Accepting this
statement as credible, which we must do for purposes of the
motion,  the mere possibility that damage
"could" have occurred during a relevant policy
period does not create a genuine issue of material fact.
Proof that establishes only possibility, speculation, or
unsupported probability does not suffice to establish a
claim. Todd v. State Through Department of Social
Services, 96-3090 (La. 9/9/97), 699 So.2d 35, 43. An
expert's speculation that a material fact
"possibly" exists or "may have" occurred
is not sufficient to create a genuine issue precluding
summary judgment. See Mansoor v. Jazz Casino Co.,
LLC, 12-1546 (La. 9/21/12), 98 So.3d 795 (per
curiam); Welborn v. Thompson Construction, 15-1217
(La.App. 1 Cir. 2/26/16), 191 So.3d 1086, 1090. The subject
affidavits, as this circuit has previously held, are
insufficient to create a genuine issue of material fact.
See Pontchartrain Natural Gas System, ___So. 3d
at___; Crosstex Energy Sevices, LP v. Texas Brine
Company, LLC, 17-0895 (La.App. 1 Cir. 12/21/17), 240
So.3d 932, 937-38, writ denied, 18-0145 (La.
3/23/18), 238 So.3d 963. The trial court did not err in
granting summary judgment and dismissing Florida Gas's
claims against Zurich.
Brine's duty-to-defend claim differs from
Pontchartrain Natural GasSystem and
Crosstex Energy Services, LP only to the extent this
case involves a different plaintiff and petition. Florida Gas
filed its suit on June 26, 2013, less than a year after the
sinkhole appeared in August of 2012. The original petition
and first two amending petitions do not suggest any damages
occurred before the sinkhole. In the third amending petition,
filed on August 17, 2015, Florida Gas alleged "the
structural integrity and operating capacity of [its] ...
pipelines were compromised as a result of the ...