United States District Court, W.D. Louisiana, Shreveport Division
REBECCA BOYCE, ET AL.
CUSA, LLC, ET AL.
JUDGE MARK L. HORNSBY
A. DOUGHTY JUDGE
before the Court is a Motion for Summary Judgment filed by
Defendant Allied World Surplus Lines Insurance Company
(“Allied”) [Doc. No. 43');">3');">3');">3]. Plaintiffs Rebecca
Boyce and Bao Ho (“Plaintiffs”), individually and
on behalf of their minor children, filed an opposition [Doc.
No. 41] and a supplemental opposition [Doc. No. 54]. Allied
has filed a reply [Doc. No. 57]. The matter is fully briefed
and the Court is prepared to rule.
FACTS AND PROCEDURAL BACKGROUND
case arises from a slip and fall accident. Plaintiffs contend
that Rebecca Boyce suffered injuries to her left big toe,
right wrist, and left hip on June 16, 2017, when she tripped
and fell on a piece of rebar protruding from the cement deck
area of a swimming pool at a Baymont Inn and Suites Hotel
(“the Hotel”) located in Shreveport, Louisiana.
December 18, 2017, Plaintiffs filed suit in the First
Judicial District Court for the Parish of Caddo, State of
Louisiana. The lawsuit was removed to this Court on February
LAW AND ANALYSIS
judgment Ashall [be] grant[ed] . . . if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.@
Fed.R.Civ.P. 56(a). A fact is "material" if proof
of its existence or nonexistence would affect the outcome of
the lawsuit under applicable law in the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
about a material fact is "genuine" if the evidence
is such that a reasonable fact finder could render a verdict
for the nonmoving party. Id.
moving party can meet the initial burden, the burden then
shifts to the nonmoving party to establish the existence of a
genuine issue of material fact for trial. Norman v.
Apache Corp., 3');">3');">3');">3d 1017');">19 F.3');">3');">3');">3d 1017, 1023');">3');">3');">3 (5th Cir. 1994). The
nonmoving party must show more than Asome metaphysical doubt
as to the material facts.@ Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In
evaluating the evidence tendered by the parties, the Court
must accept the evidence of the nonmovant as credible and
draw all justifiable inferences in its favor.
Anderson, 477 U.S. at 255.
Coverage Under the Allied Policy Issued October 2017
Petition names CUSA, LLC (“CUSA”), doing business
as Baymont Inn Suites; Citizens Bank; Liberty Surplus
Insurance Corporation (“Liberty Surplus”); and
Allied, as Defendants. Plaintiffs allege that CUSA failed to
properly maintain the Hotel, failed to remedy or warn of a
dangerous condition, and failed to inspect the premises,
causing and contributing to Rebecca Boyce3');">3');">3');">39;s bodily
injuries. Allied is named as a Defendant pursuant to the
Louisiana Direct Action Statute, LA REV. STAT. 22:1269 et al,
on the basis that it issued a policy of insurance providing
coverage to CUSA for damages caused by the slip-and-fall at
motion for summary judgment, Allied asserts that its policies
are “Claims-Made-And-Reported” policies (as
opposed to “Occurrence” Policies), requiring that
claims be both made to the Insured (here, CUSA)
and reported to the Insurer (Allied) within the
Policy period. There is no factual dispute that CUSA received
notice of Plaintiffs3');">3');">3');">39; claims in June and July 2017.
Allied contends that the claims were first reported to it in
asserts that the policy in effect when suit was filed was
issued on October 1, 2017, to CUSA, over three months
after plaintiff');">3');">3');">39;s slip-and-fall claims were
first made to CUSA. A prior policy was in effect from October
1, 2016, to October 1, 2017, and thus expired months
before the claim was first reported to Allied in
February 2018. Since the claim was not both made to
CUSA (the Insured) and reported to Allied (the