Benton v. Long Mfg. NC, Inc.

550 So. 2d 859, 1989 La. App. LEXIS 1651, 1989 WL 112082
CourtLouisiana Court of Appeal
DecidedSeptember 27, 1989
Docket20768-CA
StatusPublished
Cited by11 cases

This text of 550 So. 2d 859 (Benton v. Long Mfg. NC, Inc.) 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
Benton v. Long Mfg. NC, Inc., 550 So. 2d 859, 1989 La. App. LEXIS 1651, 1989 WL 112082 (La. Ct. App. 1989).

Opinion

550 So.2d 859 (1989)

Mary H. BENTON, Plaintiff-Appellant,
v.
LONG MANUFACTURING N.C., INC., et al., Defendant-Appellee.

No. 20768-CA.

Court of Appeal of Louisiana, Second Circuit.

September 27, 1989.

A. Richard Snell, Bossier City, for plaintiff-appellant, Mary H. Benton.

Nelson & Achee, Ltd. by James S. Denhollem, Shreveport, for defendant-appellee, Century Indem. Co.

Before SEXTON, NORRIS and HIGHTOWER, JJ.

SEXTON, Judge.

Plaintiff appeals the granting of a partial summary judgment in favor of defendant-appellee, excess insurer Century Indemnity Company, exempting it from coverage of the first $1 million of the plaintiff's demands. We affirm.

This lawsuit arises out of an industrial accident on August 27, 1985, in which Clifton D. Benton, husband of plaintiff Mary H. Benton, was killed. Mrs. Benton filed the present wrongful death action against Long Manufacturing N.C., Inc., the manufacturer of a tractor which allegedly caused Mr. Benton's death. She later added as defendants American Mutual Liability Insurance Company (American Mutual), the bodily injury liability insurer of Long *860 Manufacturing, and Century Indemnity Company (Century), which had an umbrella liability policy in effect with Long Manufacturing.

The American Mutual policy, which was issued for the period from November 1, 1984, to November 1, 1985, initially contained bodily injury and property damage limits of $1 million for each occurrence, the required underlying coverage under Long Manufacturing's insurance contract with Century. However, on June 19, 1985, Long Manufacturing unilaterally reduced the limits of the American Mutual policy to $100,000.

Century had in effect with Long Manufacturing at the time of the accident an umbrella liability policy which afforded $5 million in bodily injury liability coverage for damages in excess of the $1 million original limit of the American Mutual policy. The reduction of the limits of the American Mutual policy thus left a $900,000 gap between the primary coverage and the beginning point of Century's excess coverage.

On September 16, 1988, Century filed a motion for partial summary judgment relieving it from liability for the first $1 million of Mrs. Benton's demands. This motion was granted on October 11, 1988, for reasons orally assigned. Mrs. Benton now appeals the granting of this partial summary judgment.

A motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; State, Through Department of Highways v. City of Pineville, 403 So.2d 49 (La.1981); Swindle v. Haughton Wood Co., Inc., 458 So.2d 992 (La.App. 2d Cir.1984); Jones v. Prudential Insurance Company of America, 415 So.2d 223 (La.App. 2d Cir.1982). The burden of proof in a motion for summary judgment is on the mover to establish that there are no genuine issues of material fact. This burden is a great one. Only when reasonable minds must inevitably concur is a summary judgment warranted and any doubt should be resolved in favor of a trial on the merits. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La. 1980); Swindle v. Haughton Wood Co., Inc., supra; Jones v. Prudential Insurance Company of America, supra.

On appeal, plaintiff contends that Century's policy language is ambiguous and that, when read in the light most favorable to the insured, the policy provides "drop down" coverage in the event that the underlying policy limits are reduced and that reduced amount is paid.

An insurance policy is a contract, and the rules established for the construction of written instruments apply to contracts of insurance. Stanley v. Cryer Drilling Co., 213 La. 980, 36 So.2d 9 (1948); Dean v. Union National Fire Insurance Co., 301 So.2d 925 (La.App. 2d Cir. 1974). The Louisiana Civil Code defines interpretation of a contract as "the determination of the common intent of the parties." LSA-C.C. Art. 2045. Thus, the prime consideration in the interpretation of an insurance policy is to ascertain the true intention of the parties from the language of the policy as a whole. Harvey v. Mr. Lynn's Inc., 416 So.2d 960 (La.App. 2d Cir.1982). As in the case of other written agreements, the terms and provisions of an insurance contract are construed in their general and popular meaning. Nida v. State Farm Fire and Casualty Co., 454 So.2d 328 (La. App. 3rd Cir.1984), writ denied, 458 So.2d 486 (La.1984). An insurance contract should not be given an interpretation which would enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or which would lead to an absurd conclusion. Zurich Insurance Co. v. Bouler, 198 So.2d 129 (La.App. 1st Cir. 1967). Absent a conflict with law or public policy, insurers are entitled to limit their liability and obligations in a given policy. Fruge v. First Continental Life and Accident Insurance Co., 430 So.2d 1072 (La.App. 4th Cir.1983), writ denied, 438 So.2d 573 (La. 1983).

*861 The Century policy specifies the underlying limits of its liability with the following language:

LIMIT OF LIABILITY The company shall only be liable for the ultimate net loss the excess of either

(a) the amount recoverable[1] under the underlying insurances as set out in Item 7 of the Declarations, or

(b) the amount of the retained limit stated in Item 4 of the Declarations in respect of each occurrence not covered by said underlying insurances.

Because the occurrence at issue here (the accident) was covered by the underlying American Mutual policy, subsection (a) of the limit of liability section is applicable. This subsection specifically refers to the underlying insurance set out in Item 7 of the declarations of the Century policy. Item 7, entitled "Schedule of Underlying Insurance Policies," also clearly shows the underlying comprehensive general liability limits for bodily injury and property damage to be $1 million for each occurrence.

Therefore, according to the general and popular meaning of the words, the intent of the parties to the contract (Long Manufacturing and Century) appears to us to be that Long Manufacturing would maintain underlying insurance with American Mutual for bodily injury liability claims of up to $1 million, with any claims over that amount and up to $5 million being covered by Century. We do not see any indication that Century intended to "drop down" and cover any claims against Long Manufacturing for over $100,000 simply because Long Manufacturing unilaterally decided to renew its underlying policy with American Mutual to cover only claims against it up to $100,000.

This interpretation of an excess insurer's intent is supported by the First Circuit in Coates v. Northlake Oil Co., Inc., 499 So.2d 252 (La.App. 1st Cir.1986), writ denied, 503 So.2d 476 (La.1987). In Coates, the policy language of the excess insurer, Sentry, read as follows:

B. Underlying Limit; Retained Limit: We shall be liable only for "net loss" resulting from any one occurrence in excess of either
1. the amounts of the applicable limits of liability of the underlying insurance as stated in the Declarations less the amount, if any, which any aggregate limit of such insurance has been reduced by payment of loss, or
2.

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Bluebook (online)
550 So. 2d 859, 1989 La. App. LEXIS 1651, 1989 WL 112082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benton-v-long-mfg-nc-inc-lactapp-1989.