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Salathe v. The Parish of Jefferson

Court of Appeals of Louisiana, Fifth Circuit

July 22, 2019

SHANE SALATHE
v.
THE PARISH OF JEFFERSON THROUGH THE DEPARTMENT OF SEWERAGE IN RE AMERISURE MUTUAL INSURANCE COMPANY

          APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE HENRY G. SULLIVAN, JR., DIVISION "M", NUMBER 749-298

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson

         WRIT GRANTED IN PART; DENIED IN PART

         Relator, Amerisure Insurance Company, seeks review of the trial court's partial summary judgment in favor of plaintiffs on the issue of insurance coverage under an Amerisure insurance policy. For the following reasons, we deny the writ in part as to the issue of coverage but grant the writ in part to vacate the portion of the trial court judgment finding that the policy necessarily applies if the insured is found liable.

         On November 7, 2014, Jefferson Parish (hereinafter "the Parish") and Fleming Construction Company, LLC (hereinafter "Fleming") entered into a contract "for replacement or restoration of existing sewer mains (gravity or force)" in Jefferson Parish. That contract required Fleming to procure certain insurance policies including a commercial general liability policy and an owner's and contractor's protective (hereinafter "OCP") liability policy.[1]

         On or about December 1, 2014, Fleming procured from Amerisure an OCP policy bearing Policy Number GL 20943750102, identifying the Parish as the named insured and Fleming as the designated contractor for coverage during the sewer repair contract for the period December 1, 2014 to December 1, 2016. On January 8, 2015, the Parish issued a "Work Order" to Fleming to "Change all 4 Discharge Base Elbows, rails & all piping in wet wells" at Lift Station E7-6 in Metairie. On February 5, 2015, plaintiff Shane Salathe, a Fleming foreman, went down into the wet well to perform his work. Plaintiff alleged that when he attempted to exit the wet well, the hatch door failed and slammed, which knocked plaintiff off the ladder. That day, plaintiff fell almost thirty feet to the bottom of the well and suffered a traumatic brain injury and paraplegia.

         On May 1, 2015, plaintiff filed a petition for damages, naming, among others, the Parish and Amerisure as defendants. On April 6, 2017, Amerisure filed a motion for partial summary judgment, arguing that the OCP policy in question is a "specialized policy that only provides coverage to the [Parish] for two specific claims: 1) any vicarious liability the [Parish] may have for the negligence of [Fleming] or 2) any claim that the [Parish] negligently supervised the work of Fleming." Amerisure attached a copy of the OCP policy to its motion.

         On October 4, 2017, the trial court issued a judgment granting partial summary judgment after finding that "the response in discovery and the facts of the case do not lend themselves to the broad construction interpretation of the phrase 'general supervision' in the Amerisure policy as argued by the Plaintiff." The judgment granted partial summary judgment in favor of Amerisure and dismissed plaintiff's claims with respect to the OCP. Plaintiff sought review of that judgment with this Court. On November 14, 2017, this Court granted plaintiff's writ application, reversed the granting of partial summary judgment in favor of Amerisure, and found that "genuine issues of material fact [] preclude summary judgment at this stage of the litigation." See Salathe v. The Parish of Jefferson, 17-601 (La.App. 5 Cir. 11/14/17) (unpublished writ disposition). In our writ disposition, this Court recognized that, "a summary judgment declaring lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence in support of the motion for summary judgment, under which coverage could be afforded." Id., citing Davis v. Scottsdale Insurance Company, 13-255 (La.App. 5 Cir. 10/30/13), 128 So.3d 471 (emphasis added).

         Subsequently, plaintiff filed a motion for partial summary judgment on the same issue, the applicability of the OCP policy to plaintiff's damages. In support of his motion, plaintiff attached various documents and depositions considered previously in connection with Amerisure's motion for partial summary judgment in addition to the deposition of a Parish employee, Mr. Brett Todd.

         Mr. Todd, the current Director of the Department of Sewerage for Jefferson Parish[2], testified that Mr. Cook, a Parish employee and the project coordinator, would be the individual in charge of "monitoring the progress of the job."[3] He further agreed that the Parish "sets forth the location and the type of work to be done" at the jobsite. In opposition to the motion for partial summary judgment, Amerisure again pointed to the Parish's answers to discovery, in which the Parish indicated that it had no "supervisory responsibility" over Fleming employees. Amerisure also pointed to Mr. Cook's deposition, previously considered in connection with Amerisure's motion for partial summary judgment, in which he also testified that he did not "directly supervise" the Fleming project and that no Parish employee was present at the time of the accident at issue.

         On May 16, 2019, the trial judge issued a written judgment granting plaintiffs' motion for partial summary judgment, finding that the policy at issue applies if the Parish is found responsible for plaintiffs' damages.[4]

         Appellate courts review motions for summary judgment de novo, asking the same questions as the trial court to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773, 776. In determining whether there are any genuine issues of material fact, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Davis v. Scottsdale Ins. Co., 13-255 (La.App. 5 Cir. 10/30/13), 128 So.3d 471, 475-77.

         The Louisiana Supreme Court has instructed the following concerning interpretation of an insurance contract between parties:

[T]he responsibility of the judiciary in interpreting insurance contracts is to determine the parties' common intent. See, LSA-C.C. art. 2045; Edwards, 03-2103, p. 11, 883 So.2d at 940; Cadwallader, 02- 1637 at 3, 848 So.2d at 580; Blackburn v. National Union Fire Insurance Co. of Pittsburgh, 00-2668, p. 6 (La.4/3/01), 784 So.2d 637, 641. Courts begin their analysis of the parties' common intent by examining the words of the insurance contract itself. See, LSA-C.C. art. 2046; Succession of Fannaly v. Lafayette Insurance Co., 01- 1355, p. 3 (La.1/15/02), 805 So.2d 1134, 1137; Blackburn, 00-2668 at 6, 784 So.2d at 641 ("[T]he initial determination of the parties' intent is found in the insurance policy itself."). In ascertaining the common intent, words and phrases in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning, in which case ...

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