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O'Neal v. Foremost Insurance Co.

Court of Appeals of Louisiana, Third Circuit

February 13, 2019

AMALEETA O'NEAL, ET AL.
v.
FOREMOST INSURANCE COMPANY, ET AL.

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 254, 445 HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE

          Michael L. Glass Attorney at Law Counsel for Plaintiffs/Appellees: Amaleeta O'Neal Jeffery O'Neal

          Daniel G. Brenner Christina S. Slay Bolen, Parker, Brenner, Lee & Engelsman, Ltd Counsel for Defendants/Appellants: Foremost Insurance Company RLN Investments, LLC

          Randall B. Keiser Matthew L. Nowlin Keiser Law Firm, P.L.C. Counsel for Defendant/Appellee: Don Van Cleef

          Stacy Christopher Auzenne Auzenne Law Firm, L.L.C. Counsel for Defendant/Appellee: Messina Realty, LLC

          Ashley E. Gilbert CNA Coverage Litigation Group One Galleria Boulevard, Suite 1502 Counsel For Defendant/Appellee: Continental Casualty Company

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Phyllis M. Keaty, Judges.

          PHYLLIS M. KEATY JUDGE

         RLN Investments, LLC, appeals the trial court's grant of summary judgment in favor of Messina Realty, L.L.C., on the issue of defense and indemnity. For the following reasons, the trial court's judgment is reversed, and this matter is remanded to the trial court for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         This appeal involves the interpretation of a defense and indemnity clause in a property management agreement. On March 10, 2014, a Petition for Damages was filed by Plaintiffs, Amaleeta O'Neal and Jeffery O'Neal, against Foremost Insurance Company and Ronald Nation. Plaintiffs alleged that Amaleeta sustained injuries on March 31, 2013, when her vehicle collided with a "rotten and defective" tree which had fallen across Nation Road in Deville, Louisiana. Plaintiffs asserted the tree was located at 207 Nation Road, which was owned by Nation and insured by Foremost. Plaintiffs, thereafter, filed an amended petition wherein it dismissed Nation, individually, and added his business, RLN Investments, LLC, as an additional defendant. In its amended petition, Plaintiffs alleged the tree was located on property owned by RLN Investments and requested the matter be transferred from the Pineville City Court to the trial court. Pursuant to the city court's order, Nation was dismissed without prejudice, and the matter was transferred to the trial court.

         On May 23, 2016, RLN Investments filed a Third Party Demand against Messina Realty, asserting that Christopher Mayes was renting the property in question on the date of the incident. It also alleged that prior to the incident, RLN Investments and Messina Realty entered into a Property Management Agreement (hereinafter "the contract") whereby Messina Realty agreed to manage the property, which included notifying RLN Investments "of any maintenance issues." RLN Investments argued that Messina Realty breached the contract's terms and should be liable for any damages that may be assessed against RLN Investments. On July 20, 2016, Messina Realty filed a Motion for Summary Judgment alleging that the contract contained a clause wherein RLN Investments was required to indemnify and hold Messina Realty harmless from liability for injury suffered by an employee, tenant, or guest on or about the property. On April 25, 2017, RLN Investments filed a First Supplemental and Amended Third Party Demand naming Don Van Cleef and Continental Casualty Company as additional third party defendants. Van Cleef was named in his capacity as Messina Realty's employee and property manager for 207 Nation Road. Continental was named in its capacity as Messina Realty's Errors and Omissions insurer.

         On June 2, 2017, Van Cleef filed an Answer and Reconventional Demand against RLN Investments, asserting that he was employed by Messina Realty at the time of the incident and entitled to defense and indemnity pursuant to the contract. Van Cleef also asserted a cross-claim against Messina Realty for defense and indemnity based upon vicarious liability arising from a master/servant relationship. On September 21, 2017, RLN Investments filed a Peremptory Exception of No Cause of Action and Peremptory Exception of No Right of Action and Motion to Strike the declaratory judgment filed by Continental. RLN Investments also filed a Second Amended Third Party Demand alleging negligence against Messina Realty and/or Van Cleef. On October 17, 2017, Messina Realty filed an Exception of Prematurity to Van Cleef's cross-claim. On November 3, 2017, a Consent Judgment was executed between RLN Investments and Continental, and the trial court issued an order sustaining the exceptions and motion to strike filed by RLN Investments. Therein, the trial court also struck the request for attorneys' fees asserted in Continental's answer to RLN Investments' third party demand, as supplemented and amended.

         Van Cleef named RLN Investments and Messina Realty in a Petition for Declaratory Judgment filed on December 8, 2017, reasserting his claims for defense and indemnity. On January 9, 2018, RLN Investments and Foremost filed a Petition for Declaratory Relief against Continental on the issue of coverage of claims. On January 26, 2018, Continental filed an opposition memorandum and Motion to Strike RLN Investments' and Foremost's Petition for Declaratory Relief. On February 1, 2018, RLN Investments filed a Second Amended Third Party Demand.

         A hearing was held on February 5, 2018, regarding Van Cleef's Petition for Declaratory Judgment and Messina Realty's Motion for Summary Judgment. The trial court granted both via separate judgments. The judgment granting Messina Realty's summary judgment was signed by the trial court on February 23, 2018. RLN Investments appealed.

         On appeal, RLN Investments asserts the following assignments of error:

1. Whether the Honorable Lower Court erred in granting the Motion for Summary Judgment finding that Messina Realty, LLC, is entitled to defense and indemnity from RLN Investments, LLC, when the record demonstrated that Messina Realty, LLC, and/or its agent, Don Van Cleef, breached the Property Management Agreement between RLN Investments, ...

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