BG Real Estate Services, Inc. v. Rhino Systems of Canada, Inc.

78 So. 3d 285, 11 La.App. 5 Cir. 163, 2011 La. App. LEXIS 1370, 2011 WL 5554593
CourtLouisiana Court of Appeal
DecidedNovember 15, 2011
DocketNos. 11-CA-163, 11-CA-164
StatusPublished

This text of 78 So. 3d 285 (BG Real Estate Services, Inc. v. Rhino Systems of Canada, 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
BG Real Estate Services, Inc. v. Rhino Systems of Canada, Inc., 78 So. 3d 285, 11 La.App. 5 Cir. 163, 2011 La. App. LEXIS 1370, 2011 WL 5554593 (La. Ct. App. 2011).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

|3BG Real Estate appeals the trial court’s ruling finding that its claims for replacement costs were excluded under the commercial general liability policy. For the reasons that follow, we affirm.

Factual and Procedural Background

On April 2, 1999, Grand Point Industries (“Grand Point”) submitted a written bid to MBA Services, Inc., proposing two options for the replacement of a roof on 800 Commerce East, Harahan, Louisiana (the “East Building”). MBA Services, Inc. was the agent for Elmwood Corporate Park Limited Partnership (ECP) — the owner of the East Building. MBA Services selected Option Two — a Rhino, top coat, 20 year warranty at a cost of $49,507.50. On April 8, 1999, Grand Point procured commercial [287]*287general liability insurance from Scottsdale Insurance Company (“Scottsdale”). The policy became effective on January 18, 1999, and terminated one year thereafter.1

|4Baha Towers, III2 and Grand Point confected a contract for the replacement of the roof on the East Building on April 28, 1999. Article I — “SCOPE OF CONTRACT” — provided, in pertinent part:

... Material and workmanship is warrantied [sic] for 20 years by contractor [Grand Point] and manufacturer. Contractor agrees to provide all repairs necessary in case of a water leak from roof and/or gutters as part of the 20 year material and workmanship warranty.

In addition, the “WARRANTY” section under Article V(A) provided, “contractor guarantees and warrants his material and workmanship for a period of 20 years from the date of substantial completion of the work.”

Baha Towers executed a second contract on July 5, 1999, for the replacement of the roof on 800 Commerce West, Harahan, Louisiana (the “West Building”) — also owned by ECP. The second contract contained the identical provisions stated above. On January 18, 2000, Scottsdale and Summit Consulting, Inc. issued a certificate of liability insurance to Grand Point for commercial general liability insurance. The policy became effective on April 18, 2000, and terminated one year thereafter.

Rhino Systems of Canada, Inc. issued a separate warranty to Bahar Development, Inc. — Baha Tower’s parent company — in connection with the West Building.3 The warranty listed MBA Services as the contractor and provided a warranty period of 20 years, commencing on August 1, 1999— the date on which the installation of the roof at the West Building was completed. BG Real Estate alleges that within a year of installation, the roof membrane of both the East and West Buildings began to fail, allowing water to enter the buildings.

| sOn July 6, 2001, the plaintiffs/appellants, BG Real Estate and HAOBIGP, LLC — the general partners for ECP— filed a petition for damages against the defendants/appellees, Rhino Systems of Canada, Inc., Grand Point, Scottsdale, and Summit Consulting, Inc. for damages sustained due to the failure of the roof on the West Building.4 BG Real Estate then filed a similar, separate suit on March 15, 2002, against Rhino Systems of Texas, Grand Point, and Scottsdale, for damages sustained due to the failure of the roof on the East Building. The actions were consolidated on March 5, 2004.

Scottsdale moved for summary judgment on June 2, 2004, arguing that there were no genuine issues of material fact because the policy issued to Grand Point did not provide coverage for BG Real Estate’s claims. The trial court denied the motion on March 30, 2005. In its written reasons denying the motion, the trial court found that no exclusions existed in the policy for the consequential damages alleged, finding that those damages appeared to be covered under the warranty [288]*288section. The court further found that there was a factual dispute regarding whether a subcontractor was involved.

On August 11, 2006, BG Real Estate, Scottsdale, and Grand Point jointly moved to dismiss Grand Point from the litigation, while BG Real Estate preserved its right to proceed against Scottsdale.5 The trial court granted the motion on August 14, 2006; and around that same time, BG Real Estate settled its claims for the consequential damages. Trial regarding the replacement costs was scheduled to commence on November 17, 2009. The parties, however, jointly submitted the case to the trial court. The trial court found Supreme Services Specialty Co.6 ^controlling and ruled in Scottsdale’s favor, rendering its judgment on October 5, 2010. BG Real Estate timely moved for a new trial. After a hearing, that motion was denied. BG Real Estate moved for a devolutive appeal from the October 5th judgment. Discussion

An insurance policy is a contract, which must be construed employing the general rules of interpretation of contracts. Supreme Services, supra, at 638 (citations omitted). If the insurance policy’s language clearly expresses the parties’ intent and does not violate a statute or public policy, the policy must be enforced as written. Id. However, if the insurance policy is susceptible to two or more reasonable interpretations, then it is considered ambiguous and must be liberally interpreted in favor of coverage. Id. citing Reynolds v. Select, 93-1480 (La.4/11/94), 634 So.2d 1180; Newby v. Jefferson Parish Sch. Bd., 99-98 (La.App. 5 Cir.6/1/99), 738 So.2d 93.

Liability insurance policies should be interpreted to effect, rather than to deny coverage. Supreme Services, supra, at 638. It is well-settled, however, that unless a statute or public policy dictates otherwise, “the insurers may limit liability and impose such reasonable conditions or limitations upon their insureds.” Id. at 638-9. In these circumstances, unambiguous provisions limiting liability must be given effect. Id. (citations omitted). Thus, an insurer bears the burden of proving that a loss falls within a policy exclusion. Id. see also Blackburn v. National Union Fire Ins. Co., 00-2668 (La.4/3/01), 784 So.2d 637, 641.

Assignments of Error

BG Real Estate presents two assignments of error for review. Due to the interrelatedness of the issues presented, the two will be discussed in tandem. BG l7Real Estate contends that the trial court erred in finding that the Rhino warranties were excluded under the Scottsdale policy and further erred by misapplying Supreme Services.

BG Real Estate seeks replacement costs in the amount of $78,730.00 and $70,000.00 for replacement of the roofs on the West and East Buildings, respectively. It contends that its claims for replacement costs are covered, arguing that “warranties are part of the contractor’s work, and that the contractors [sic] work is excluded from coverage unless that work is supplied by a subcontractor. As the Rhino companies are subcontractors their warranties must be covered under the exclusions to section L.”

In this case, the three relevant exclusions in the CGL policy under which Scottsdale could deny coverage are exclusions (j)(5), (j)(6) and exclusion (l). Those exclusions provide:

[289]*2892. Exclusions
This insurance does not apply to ...

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Supreme Services v. Sonny Greer, Inc.
958 So. 2d 634 (Supreme Court of Louisiana, 2007)
McMath Const. Co., Inc. v. Dupuy
897 So. 2d 677 (Louisiana Court of Appeal, 2004)
Reynolds v. Select Properties, Ltd.
634 So. 2d 1180 (Supreme Court of Louisiana, 1994)
Blackburn v. National Union Fire Ins. Co.
784 So. 2d 637 (Supreme Court of Louisiana, 2001)
Newby v. Jefferson Parish School Bd.
738 So. 2d 93 (Louisiana Court of Appeal, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
78 So. 3d 285, 11 La.App. 5 Cir. 163, 2011 La. App. LEXIS 1370, 2011 WL 5554593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bg-real-estate-services-inc-v-rhino-systems-of-canada-inc-lactapp-2011.