Allstate Ins. Co. v. Roy

653 So. 2d 1327, 1995 WL 240664
CourtLouisiana Court of Appeal
DecidedApril 7, 1995
Docket94-CA-1072
StatusPublished
Cited by11 cases

This text of 653 So. 2d 1327 (Allstate Ins. Co. v. Roy) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allstate Ins. Co. v. Roy, 653 So. 2d 1327, 1995 WL 240664 (La. Ct. App. 1995).

Opinion

653 So.2d 1327 (1995)

ALLSTATE INSURANCE COMPANY
v.
Sam ROY d/b/a Southern Man Maintenance Company and Commercial Union Insurance Company.

No. 94-CA-1072.

Court of Appeal of Louisiana, First Circuit.

April 7, 1995.
Writ Denied June 16, 1995.

*1329 Mary G. Erlingson, Baton Rouge, for plaintiff-appellee Allstate Ins. Co.

Donnie L. Floyd, Baton Rouge, for intervenors-appellees A.C. Hodges and Tammy Hodges.

John W. Perry, Jr. and Dawn T. Trabeau-Mire, Baton Rouge, for defendant-appellant Commercial Union Ins. Co.

Steven E. Adams, Baton Rouge, for defendant-appellant Sam Roy d/b/a Southern Man Maintenance Co.

Before FOIL, WHIPPLE and KUHN, JJ.

KUHN, Judge.

After payment to a homeowner for fire loss, the insurer asserted subrogation rights against defendants, the installer of a furnace and its commercial general liability ("CGL") insurer. The CGL insurer denied liability, maintaining that coverage under the policy was excluded under the completed operations hazard exclusion and declined to defend its insured. Subsequently, the homeowner intervened in the lawsuit and the installer filed a cross claim against its CGL insurer seeking expenses and costs of defense. After a trial limited to the issue of coverage, the trial court determined that the installer's CGL policy provided coverage and that the insurer owed a duty to defend. We reverse.

Facts

According to the petition of the plaintiff-appellee, Allstate Insurance Company ("Allstate"), its insured, A.C. Hodges, contracted with the defendant, Sam Roy d/b/a Southern Man Maintenance Company ("Roy") for the installation of a furnace. Allstate also named appellant, Commercial Union Insurance Company ("CU"), the CGL insurer for Roy, as a defendant. On December 4, 1987, a fire originated near the roof of the Hodges' home in Gonzales, Louisiana, due to the negligent and improper installation of the furnace. Allstate particularly alleged that Roy failed to properly install the furnace, failed to extend the vent stack of the furnace through the roof, failed to use the proper size vent stack, and failed to properly fit the vent stack. Subsequently, by amended petition, Allstate added an allegation that Roy knew or should have known of the problems with the furnace. Also, Allstate alleged that Roy should have warned the Hodges that the *1330 furnace ought to have been equipped with a safety device to shut down the unit in order to prevent the igniting of a fire.

Allstate's insured intervened in this lawsuit claiming to have sustained damages in excess of the proceeds received for the fire loss.[1] Roy filed a cross claim against CU seeking the expenses of defending the lawsuit and all costs.

CU denied coverage, arguing that the allegations contained in the petition fell squarely within the completed operations hazard exclusion of the CGL policy and refused to provide Roy with a defense.[2] After a trial on the issue of coverage, without assigning reasons, the trial court signed a judgment holding that CU did provide coverage and owed Roy a defense.[3] The parties entered into a stipulated judgment on November 4, 1993, which made the judgment finding coverage and a duty to defend final and which assessed damages. In its sole assignment of error, CU asserts that the trial court erred in holding (1) that the CGL policy provided coverage for Roy's acts in negligently installing the furnace into Hodges' home and (2) that it owed a duty to defend its insured.

Coverage

Allstate asserts that Roy purchased the CGL policy to cover hazards that he might incur in his line of business. The covered hazards are described on the front page of the policy as follows:

Premises-Operations

Air Conditioning, Heating or refrigeration systems or combined heating [and] air conditioning systems includ[ing] duct work and piping-installation, servicing or repair includ[ing] shop [and] retail stores or display rooms[.]

According to the allegations contained in Allstate's petition, the property damage Hodges suffered was the result of Roy's failure to properly install the furnace.

CU maintains that coverage for any negligence in workmanship that Roy may have assumed when he contracted with Hodges is excluded under the terms of the policy. The general exclusions portion of the policy that CU relies on provides in pertinent part:

This insurance does not apply:

(a) to liability assumed by the insured under any contract or agreement except an incidental contract;[4] but with respect to bodily injury or property damage occurring while work performed by the named insured is in progress this exclusion does not apply to a warranty that such work will be done in a workmanlike manner. (Emphasis deleted.)

The policy defines "property damage," in pertinent part, as "physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom...."

An insurance contract is the law between the parties, and every provision therein must be construed as written. Thibodeaux v. Doe, 602 So.2d 1076, 1078 (La. App. 1st Cir.), writ denied, 605 So.2d 1377 (La.1992). Words used in an insurance contract *1331 are to be understood in their usual and common signification. Nickels v. Guarantee Trust Life Ins. Co., 563 So.2d 924, 926 (La. App. 1st Cir.1990). When the policy wording is clear and does not lead to absurd consequences, the agreement must be enforced as written. La.Civ.Code art. 2046; Dauthier v. Pointe Coupee Wood Treating Inc., 560 So.2d 556, 557 (La.App. 1st Cir.1990). Because the contract between Roy and Hodges was not an incidental contract and because the property damage by fire to Hodges' home did not occur while Roy was installing the furnace, but occurred several months after the furnace had been connected to an electrical source, we find that any liability for the negligence of Roy's workmanship assumed pursuant to his contract with A.C. Hodges was excluded from coverage under the plain language of general exclusion (a).

Allstate argues that the property damage that Hodges suffered arose out of Roy's negligence in installing the furnace and therefore was a covered risk. CU maintains that the terms of the CGL policy purchased by Roy did not include coverage for property damage occurring after the installation process was finished as evidenced by the completed operations hazard exclusion. We agree.

The coverage section of the policy defines the completed operations hazard as including:

bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. "Operations" include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed,
(2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or

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Cite This Page — Counsel Stack

Bluebook (online)
653 So. 2d 1327, 1995 WL 240664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allstate-ins-co-v-roy-lactapp-1995.