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Boyce v. Cusa, LLC

United States District Court, W.D. Louisiana, Shreveport Division

March 1, 2019

REBECCA BOYCE, ET AL.
v.
CUSA, LLC, ET AL.

          MAG. JUDGE MARK L. HORNSBY

          RULING

          TERRY A. DOUGHTY JUDGE

         Pending 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.

         I. FACTS AND PROCEDURAL BACKGROUND

         This 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.

         On 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 7, 2018.

         II. LAW AND ANALYSIS

         A. Summary Judgment

         Summary 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.

         If the 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.

         B. Coverage Under the Allied Policy Issued October 2017

          The 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 Boyce&#3');">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 CUSA&#3');">3');">3');">39;s property.

         In its 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 Plaintiffs&#3');">3');">3');">39; claims in June and July 2017. Allied contends that the claims were first reported to it in February 2018.

         Allied 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');">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 ...


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