Bernard Lumber Co. v. Louisiana Ins. Guar. Ass'n

563 So. 2d 261, 1990 La. App. LEXIS 1545, 1990 WL 75721
CourtLouisiana Court of Appeal
DecidedFebruary 23, 1990
DocketCA 88 1155
StatusPublished
Cited by14 cases

This text of 563 So. 2d 261 (Bernard Lumber Co. v. Louisiana Ins. Guar. Ass'n) 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
Bernard Lumber Co. v. Louisiana Ins. Guar. Ass'n, 563 So. 2d 261, 1990 La. App. LEXIS 1545, 1990 WL 75721 (La. Ct. App. 1990).

Opinion

563 So.2d 261 (1990)

BERNARD LUMBER COMPANY, INC.
v.
The LOUISIANA INSURANCE GUARANTY ASSOCIATION.

No. CA 88 1155.

Court of Appeal of Louisiana, First Circuit.

February 23, 1990.
Writ Denied September 28, 1990.

*262 Darryl Foster, New Orleans, for plaintiff-appellee Bernard Lumber Co., Inc.

Henry Terhoeve, Baton Rouge, for defendant-appellant Louisiana Ins. Guar. Ass'n.

Before COVINGTON, C.J., and EDWARDS, LANIER, ALFORD and FOIL, JJ.

FOIL, Judge.

This is an appeal by Louisiana Insurance Guaranty Association (LIGA) from the trial court's granting of a motion for summary judgment in favor of Bernard Lumber Company, Inc. (Bernard), and denial of a motion for summary judgment filed by LIGA. The dispute in this case involves the issue of LIGA's liability as a result of the insolvency of Bernard's primary and excess insurers.

FACTS

Neither party contests the facts of this case. Bernard purchased primary insurance coverage from Northwest Insurance Company (Northwest) for automobile and comprehensive general liability. One policy was effective from July 1, 1982, to July 1, 1983, and another was effective from July 1, 1983, to July 1, 1984. Northwest was not an admitted insurer in Louisiana and thus, claims against it were not subject to coverage by LIGA. Bernard also purchased excess insurance coverage from Mission National Insurance Company (Mission). The two Mission policies bore corresponding effective dates to the two Northwest policies and referenced the Northwest policies as the underlying insurance. Since Mission was an admitted insurer in Louisiana, LIGA provides protection for claims brought under Mission policies. Both Northwest and Mission subsequently became insolvent.

Due to Northwest's insolvency, Bernard paid certain claims against it which arose during the period covered by the Northwest policies. It then brought the instant suit against LIGA,[1] seeking reimbursement *263 for these amounts since Mission was also insolvent. All of said claims are within the limits of the Northwest policies. Bernard contends the Mission policies "drop down" to provide primary coverage for these claims, and, as the obligations of Mission are assumed by LIGA, it in turn becomes responsible for the same. LIGA and Bernard filed cross motions for summary judgment on the question. The trial court found that the language of the Mission policies is ambiguous and must be construed against Mission in favor of coverage. Therefore, the court found that the excess coverage drops down to become primary, and under the facts of this case, coverage is then provided by LIGA. The trial court rendered the following judgments on the two motions:

IT IS ORDERED, ADJUDGED AND DECREED that the motion for summary judgment filed by defendant, The Louisiana Insurance Guaranty Association, be and the same is DENIED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the motion for summary judgment filed by plaintiff, Bernard Lumber Company, Inc., be and the same is GRANTED, declaring that the policies of Mission National Insurance Company are ambiguous and therefore drop down to provide primary coverage to Bernard Lumber Company, Inc.

LIGA appealed both judgments.

There is serious question as to whether this Court, under its appellate jurisdiction, may reverse the trial court's denial of LIGA's motion for summary judgment. In Genina Marine Services, Inc. v. Arco Oil & Gas Company, 499 So.2d 257 (La.App. 1st Cir.1986), there were cross motions for summary judgment (as in the instant case) and the losing party appealed both judgments (like LIGA herein). This court refused to consider the appeal from the judgment denying the motion for summary judgment because it was not an appealable judgment. See also Towles v. Heirs of Morrison, 428 So.2d 1029 (La.App. 1st Cir.1983).

The proper remedy available to LIGA to review the denial of the summary judgment is to request this court to exercise its supervisory jurisdiction. Louviere v. Byers, 526 So.2d 1253 (La.App. 3d Cir.), writ denied, 528 So.2d 153 (La. 1988). In the present case, both parties, at the oral argument, urged the Court to decide the appeal of both motions for summary judgment under our powers of supervisory jurisdiction. Therefore, we shall do so, and hereby reverse.

LAW

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. It is well settled that a valid insurance policy is a contract between the insured and the insurer and is thus the law between them. As in the case of other written agreements, the terms and provisions of an insurance contract are to be interpreted in their general and popular meaning. All ambiguities must be construed in favor of the insured and against the insurer. However, where the language of an insurance contract is clear and free of ambiguity, it constitutes the contract between the parties and courts have no authority to change or alter its terms under the guise of interpretation. Radar v. Duke Transportation Inc., 492 So.2d 532, 533-534 (La.App. 3d Cir.1986).

ANALYSIS

In this instance, where the primary insurer became insolvent, the issue of whether or not the excess insurer is liable only for the amount of the claims in excess of the retained limits or whether its coverage drops down to that of the primary insurer is determined by the provisions of the excess policy. We must therefore consider all pertinent provisions of Mission's policies in order to derive the intended meaning.

*264 The coverage provisions of the policies state, in pertinent part:

II. DEFENSE, SETTLEMENT, SUPPLEMENTARY PAYMENTS—
As respects occurrences covered under this policy, but not covered under the underlying insurances as set out in the attached schedule or under any other collectible insurance, the Company shall:
(a) defend in his name and behalf any suit against the insured alleging liability insured under the provisions of this policy and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the Company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the company;
. . . . .
III. LIMIT OF LIABILITY—
The Company shall only be liable for the ultimate net loss the excess of either
(a) the limits of the underlying insurances as set out in the attached schedule in respect of each occurrence covered by said underlying insurances,
or
(b) the amount as set out in item 2(c) of the Declarations ultimate net loss in respect of each occurrence not covered by said underlying insurances.
(hereinafter called the "underlying limits"):
and then only up to a further sum as stated in item 2(a) of the Declarations in all in respect of each occurrence—subject to a limit as stated in item 2(b) of the Declarations in the aggregate for each annual period during the currency of this Policy, separately in respect of Products Liability and in respect of Personal injury (fatal or non-fatal) by Occupational Disease sustained by any employees of the insured.

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Bluebook (online)
563 So. 2d 261, 1990 La. App. LEXIS 1545, 1990 WL 75721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-lumber-co-v-louisiana-ins-guar-assn-lactapp-1990.