Bossier Plaza Assoc. v. Nat. Union Ins.

813 So. 2d 1114, 2002 WL 491925
CourtLouisiana Court of Appeal
DecidedApril 3, 2002
Docket35,741-CA
StatusPublished
Cited by11 cases

This text of 813 So. 2d 1114 (Bossier Plaza Assoc. v. Nat. Union Ins.) 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
Bossier Plaza Assoc. v. Nat. Union Ins., 813 So. 2d 1114, 2002 WL 491925 (La. Ct. App. 2002).

Opinion

813 So.2d 1114 (2002)

BOSSIER PLAZA ASSOCIATES, et al., Plaintiffs-Appellants,
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Defendant-Appellee.

No. 35,741-CA.

Court of Appeal of Louisiana, Second Circuit.

April 3, 2002.

*1115 Mayer, Smith & Roberts, L.L.P., by Steven E. Soileau, Shreveport, for Appellants.

Lunn, Irion, Salley, Carlisle & Gardner, by J. Martin Lattier, Shreveport, for Appellee.

Before NORRIS, C.J., and GASKINS and CARAWAY, JJ.

GASKINS, J.

This appeal concerns the failure of an insurer to defend an additional named insured in a personal injury lawsuit. The additional named insured, Bossier Plaza Associates, appeals from a trial court judgment in favor of the insurer, National Union Fire Insurance Company. We affirm.

FACTS

Bossier Plaza Associates is the owner of Pierre Bossier Mall in Bossier City. It apparently managed the mall through the Odin Management Corporation. H & R *1116 Block Eastern Tax Services, Inc., was a mall tenant. The lease agreement between Bossier Plaza Associates and H & R Block required that the lessee carry insurance coverage and provided for indemnification of the lessor by the lessee. The contract provided, in relevant part:

6. Insurance: Lessee shall, at its full cost and expense, procure and continue in force, during the term of this Lease Agreement, comprehensive general liability insurance with contractual liability endorsement relating to the Premises covering any and all claims for injuries to persons or upon the Premises and insuring the Indemnity Agreement contained in Paragraph 5 hereof. Such insurance shall be single limit coverage in an amount not less than One Million ($1,000,000.00) Dollars. Lessee shall also carry property damage insurance in an amount of not less than One Hundred Thousand ($100,000.00) Dollars for damage to property arising out of any one occurrence. Any insurance policies required hereunder shall name Lessor, and any designees of Lessor, as an additional insured and Lessee shall furnish evidence of such insurance coverage prior to occupancy of the Premises.
7. Indemnity: Lessee shall indemnify, defend and save harmless the Lessor from and against any and all claims and/or liability resulting from act or omission of Lessee and/or Lessee's use or occupancy of the Premises. ...
[Emphasis added][1]

H & R Block had a policy from National Union which provided coverage to Bossier Plaza Associates as an additional insured. The policy's general insuring agreement stated, in pertinent part:

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend any "suit" seeking those damages. We may at our discretion investigate any "occurrence" and settle any claim or "suit" that may result....
b. This insurance applies to "bodily injury" and "property damage" only if:
(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"....

The "definitions" section of the policy defines "coverage territory" as meaning:

a. The United States of America (including its territories and possessions), Puerto Rico and Canada;
b. International waters or airspace, provided the injury or damage does not occur in the course of travel or transportation to or from any place not included in a. above; or
c. All parts of the world if:
(1) The injury or damage arises out of:
(a) Goods or products made or sold by you in the territory described in a. above; or
(b) The activities of a person whose home is in the territory described in a. above, but is away for a short time on your business; and
(2) The insured's responsibility to pay damages is determined in a "suit" on the merits, in the territory described in a. above or in a settlement we agree to.

*1117 The policy contained the following endorsement pertaining to "additional insured—managers or lessors of premises":

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART
Schedule
1. Designation of Premises (Part Leased to You): All Locations
2. Name of Person or Organization (Additional Insured): As [required] by contract....
WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule and subject to the following additional exclusions:
This insurance does not apply to:
1. Any "occurrence" which takes place after you cease to be a tenant in that premises.
2. Structural alterations, new construction or demolition operations performed by or on behalf of the person or organization shown in the Schedule. [Emphasis added.]

On February 1, 1996, during an ice storm, the mall opened for business but decided to close at 5:00 p.m. due to problems with ice. Reine Keller, a part-time H & R Block employee, called in at 5:00 p.m. and was told by her supervisor that, even though the mall was closing, their business would remain open. However, she was told to use her own judgment in deciding whether to come in. She reported for work at 5:30 p.m. At 7:30 p.m., after walking a customer to the parking lot, Ms. Keller fell on an icy outside sidewalk. She injured her shoulder and arm.

Ms. Keller sued H & R Block, Odin Management, Inc., and its insurer U.S. Fire Insurance Company.[2] Odin filed a cross-claim against H & R Block, seeking indemnification under the lease contract. The trial court granted summary judgment in Odin's favor on the cross-claim. When the matter went to trial, an involuntary dismissal was rendered against Ms. Keller at the conclusion of her case. The trial court found that Odin had acted reasonably in closing the mall and it was not responsible for Ms. Keller's injury which arose from H & R Block's continued operation. Ms. Keller and H & R Block both appealed.

In Keller v. Odin Management, Inc., 30,682 & 31,305 (La.App.2d Cir.8/19/98), 716 So.2d 962, writ denied, 98-2434 (La.1/8/99), 734 So.2d 1228, this court reversed the trial court judgment granting Odin's motion for involuntary dismissal and remanded for further proceedings. The summary judgment in favor of Odin and against H & R Block on the cross-claim was also reversed and remanded. We further affirmed a summary judgment in favor of H & R Block which found that Ms. Keller's recourse against her employer lay in worker's compensation.

On the issue of indemnity, we stated as follows, 716 So.2d at 965-966:

Paragraph 7 of the lease agreement between Odin (lessor), and H & R Block (lessee), provides that the lessee shall indemnify, defend and save harmless the lessor from any and all claims or liability *1118 resulting from the lessee's act or omission, and the lessee's use or occupancy of the premises.

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813 So. 2d 1114, 2002 WL 491925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bossier-plaza-assoc-v-nat-union-ins-lactapp-2002.