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Whitehead v. Curole

Court of Appeals of Louisiana, First Circuit

May 9, 2019


          On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. C658838 Honorable Janice Clark, Judge

          L. Richard Roy, III Baton Rouge, Louisiana Counsel for Defendants/ Appellants Michael and Susan Curole

          Charles V. Giordano Michael E. Escudier Jennifer S. Edwards Jairo F. Sanchez Dianna Duffy Willem Metairie, Louisiana Counsel for Defendant/Appellee Progressive Security Insurance Company


          MCCLENDON, J.

         This appeal arises from the trial court's judgment granting a motion for summary judgment in favor of an insurer. For the reasons that follow, we affirm.


         On June 19, 2017, Angela Whitehead filed a Petition for Damages against Michael Curole, Susan Curole, ASI Lloyds, as the homeowners' insurer of the Curoles, and Progressive Security Insurance Company (Progressive), as the personal umbrella insurer of the Curoles. Therein, Ms. Whitehead alleged that on April 5, 2017, the Curoles' dog bit her causing her to suffer injuries and damages due to the negligence of the Curoles.[1] Thereafter, ASI Lloyds and Progressive each filed an answer, and the Curoles filed an answer and cross-claim against Progressive. ASI Lloyds and Progressive then filed a motion for summary judgment asserting animal liability exclusions in their respective insurance policies. The motion was heard on March 1, 2018. At the beginning of the hearing, Ms. Whitehead and ASI Lloyds stipulated that they had reached an agreement and that they would enter into a consent judgment, granting ASI Lloyd's motion for summary judgment and dismissing Ms. Whitehead's claims against ASI Lloyds. Progressive's motion for summary judgment was then argued and taken under advisement. Later that same day, the trial court issued a minute entry, stating that it was "firmly of the opinion that there is no genuine issue of material fact," and granted Progressive's motion for summary judgment, dismissing all claims against Progressive. On March 20, 2018, the trial court signed a final judgment, and the Curoles have appealed.


         Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court's determination of whether summary judgment is appropriate. Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So.3d 1002, 1005-06. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. LSA-C.C.P. art. 966A(3) and (4). The court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of material fact. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam); Penn v. CarePoint Partners of Louisiana, LLC, 14-1621 (La.App. 1 Cir. 7/30/15), 181 So.3d 26, 30. A genuine issue is one as to which reasonable persons could disagree. Moreover, all doubts should be resolved in the non-moving party's favor. Hines, 876 So.2d at 765-66.

         The burden of proof rests with the mover. LSA-C.C.P. art. 966D(1). Nevertheless, if the moving party will not bear the burden of proof at trial on the issue before the court on the motion, the moving party's burden is satisfied by pointing out an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966D(1). The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. LSA-C.C.P. art. 966D(2). Thereafter, the adverse party may not rest on the mere allegations or denials of his pleadings but must produce factual support sufficient to establish there is a genuine issue for trial. If the adverse party fails to meet this burden, then summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967B.

         Interpretation of an insurance policy is usually a legal question that can be properly resolved by means of a motion for summary judgment. Miller v. Superior Shipyard and Fabrication, Inc., 01-2683 (La.App. 1 Cir. 11/8/02), 836 So.2d 200, 203. An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. The judicial responsibility in interpreting insurance contracts is to determine the parties' common intent. The parties' intent as reflected by the words in the policy determines the extent of coverage. Samuels v. State Farm Mutual Automobile Insurance Company, 06-0034 (La. 10/17/06), 939 So.2d 1235, 1240. If the wording of the policy clearly and unambiguously expresses the parties' intent, the insurance contract must be enforced as written. Edwards v. Daugherty, 03-2103 (La. 10/1/04), 883 So.2d 932, 941. Furthermore, to recover on an insurance policy, an insured must prove that its loss is covered by the policy. If the insured meets this burden, the insurer then has the burden of proving the applicability of policy exclusions. Maldonado v. Kiewit Louisiana Company, 13-0756 (La.App. 1 Cir. 3/24/14), 146 So.3d 210, 218.

         In their appeal, the Curoles initially assert that the evidence Progressive submitted in support of its motion for summary judgment failed to meet the mandatory requirements of LSA-C.C.P. art. 967. In their first two assignments of error, the Curoles contend that the affidavit of Brian Dedrick, Progressive's analyst and representative, was inadmissible because all papers attached thereto were not sworn or certified copies. Particularly, the Curoles maintain that Progressive's underwriting file was provided by Amanda Horton in an unsigned and unsworn letter. Therefore, according to the Curoles, Mr. Dedrick's affidavit and the underwriting file were inadmissible.

         Alternatively, the Curoles assert in their third assignment of error that Progressive failed to prove actual delivery of the insurance policy and its endorsements and exclusions. In support of this argument, Mr. Curole submitted his own affidavit, in which he attested that he did not receive a copy of the umbrella policy until after the April 2017 dog-bite incident. The Curoles aver that, although Mr. Dedrick stated in his affidavit that Progressive "followed its standard procedures of mailing the policy, declaration page, and endorsements to ...

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