United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, JUDGE.
the Court is Defendant's Motion for Summary
Judgment (Doc. 22) and Plaintiffs Motion for
Partial Summary Judgment
Coverage. (Doc. 24) Both parties
filed responses. (Doc. 29, 31) For the reasons stated herein,
the Motion for
Summary Judgment (Doc. 22)
is GRANTED IN PART and DENIED IN
PART. The Motion for
Insurance Coverage (Doc. 24) is
is the owner of immovable property located at 730 North
Boulevard, Baton Rouge, Louisiana ("the Property").
Defendant issued an insurance policy to Plaintiff for the
Property from 2016 to 2017. (Doc. 1-2 at p. 1) On or about
August 12, 2016, Baton Rouge experienced extremely heavy
rainfall during which Veronica Smith ("Mrs.
Smith"), Plaintiffs office manager, was notified that
there was a leak at the Property. (Doc. 31-1 at p. 2) Mrs.
Smith's husband, Jordan Smith ("Mr. Smith")
climbed to the roof to investigate and found eight to ten
inches of standing water on the flat roof. (Id.)
After walking the perimeter of the roof, Mr. Smith located
the drain where he found a "vortex" of water slowly
draining over it. (Id.) He cleared a clump of leaves
that had been clogging the drain, after which the water
drained off the roof quickly. (Id.)
Plaintiff reported to Defendant that interior water damage
was sustained to the Property. Defendant had an insurance
adjuster inspect the Property on August 29, 2016. The
adjuster concluded that there was no storm related damage to
the roof of the Property. (Id.) Defendant's
inspector noted wear and tear and cracks on the flat portion
of the roof, which he concluded allowed the water to enter
the interior of the building. On September 2, 2016 Defendant
denied Plaintiff's insurance claim. (Doc. 22-1 at p. 5)
On August 14, 2017 Plaintiff filed suit against Defendant in
the 19th Judicial District. (Doc. 1-2 at p. 1) The
case was removed to federal court on October 12, 2017. (Doc.
core of the parties' dispute is the scope of coverage
under the insurance policy. The relevant portions of the
policy are as follows: Defendant is not obligated to cover
damage to the interior of the Property caused by rain unless
the Property first sustains damage from a covered cause of
loss to the roof through which the rain enters. (Doc. 31-1 at
p. 4) "Wear and tear" is not a covered cause of
loss. The policy also contains an exclusion for damage
resulting from "surface water." (Id. at p.
5). Both Plaintiff and Defendant seek summary judgment on the
issue of whether the damage to the Property is covered by the
policy. Defendant also seeks summary judgment regarding
Plaintiffs claims that Defendant acted in bad faith.
to Rule 56, "[t]he [C]ourt shall grant summary judgment
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). In determining
whether the movant is entitled to summary judgment, the Court
views the facts in the light most favorable to the non-movant
and draws all reasonable inferences in the non-movant's
favor. Coleman v. Houston Independent School Dist,
113 F.3d 528, 533 (5th Cir. 1997).
proper motion for summary judgment is made, the non-movant
must set forth specific facts showing there is a genuine
issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986). At this stage, the Court does not
evaluate the credibility of witnesses, weigh the evidence, or
resolve factual disputes. Int'l Shortstop, Inc. v.
Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991),
cert, denied, 502 U.S. 1059 (1992). However, if the evidence
in the record is such that a reasonable jury, drawing all
inferences in favor of the non-moving party, could arrive at
a verdict in that party's favor, the motion for summary
judgment must be denied. Int'l Shortstop, Inc.,
939 F.2d at 1263.
other hand, the non-movant's burden is not satisfied by
some metaphysical doubt as to the material facts, or by
conclusory allegations, unsubstantiated assertions, or a mere
scintilla of evidence. Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994). Summary judgment is
appropriate if the non-movant "fails to make a showing
sufficient to establish the existence of an element essential
to that party's case." Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). In other words,
summary judgment will be appropriate only "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits if any, show
that there is no genuine issue as to any material fact, and
that the moving party is entitled to judgment as a matter of
law." Sherman v. Hallbauer, 455 F.2d 1236, 1241
(5th Cir. 1972).
Surface Water Exclusion Provision
argues that Plaintiffs claims should be dismissed because the
water on the roof was "surface water," which is
explicitly excluded from coverage. (Doc. 22-1 at p. 14).
Defendant points to Sherwood Real Estate and Inv. Co.,
Inc. v. Old Colony Ins. Co., in which the court found
that rain water which accumulated on a roof constituted
surface water under the plaintiffs insurance
policy.234 So.2d 445 (La.App. 1 Cir. 4/13/70).
However, as the Louisiana Court of Appeal for the Fifth
Circuit pointed out later in Cochran v. Travelers Ins.
Co, this statement in Sherwood was dicta. 606
So.2d 22, 24 (La.App. 5 Cir. 9/16/92). The Sherwood
court addressed ...