Castain v. American Summit Insurance Co.

230 So. 3d 1008
CourtLouisiana Court of Appeal
DecidedNovember 2, 2017
DocketCW 17-375
StatusPublished

This text of 230 So. 3d 1008 (Castain v. American Summit Insurance Co.) 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
Castain v. American Summit Insurance Co., 230 So. 3d 1008 (La. Ct. App. 2017).

Opinion

KEATY, Judge.

11 Relator, American Summit Insurance Company, sought supervisory writs from a judgment denying its motion for summary judgment. By order dated June 19, 2017, we granted the writ and' gave the parties time to file additional briefs and to request oral argument should they deem it necessary.1 Thereafter, no additional briefs were filed and oral argument was not requested. Accordingly, we now address the merits of Relator’s motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

This case involves a lawsuit which Plaintiff, Gregory Castain, filed, seeking to recover for damages to his house which was struck by a vehicle that ran off the roadway. On January 24, 2014, Kenneth Rosette was driving his pickup truck on Louisiana Highway 749 -in Opelousas, Louisiana, when he lost control of the vehicle. After crossing the centerline, - the east -shoulder of the road, and- a ditch,. Mr. Rosette’s vehicle went onto Plaintiffs property and struck the front of Plaintiffs house. Plaintiff alleges that the force of impact caused damage to his front ¡door, storm door, vinyl siding, and- concrete steps. Plaintiff also alleges that the impact caused the house’s foundation to become dislodged, resulting in humps and dips in -the flooring. Plaintiff filed 'a claim with Relator, which had issued a homeowner’s insurance policy to Plaintiff. Relator paid to repair Plaintiffs door, Lsteps, and siding; however, Relator refused to pay for the alleged damage to the foundation on the basis that coverage for such damage is excluded under the policy. Subsequently, Plaintiff, acting in proper person, filed the-instant lawsuit. .In November 2016, Relator filed a motion for,summary judgment, seeking dismissal of the lawsuit. The trial court excluded Plaintiffs opposition to the motion for summary judgment on the ground that it was untimely filed. Following a hearing, the trial court denied Relator’s motion for summary judgment. Relator seeks review of the trial - court’s ruling.

LAW

Appellate courts “review a grant .or a denial of a motion for-summary judgment de novo.” Bridges v. Cepolk Corp., 13-1051, p. 10 (La.App. 3 Cir. 2/12/14), 153 So.3d 1137, 1145, writ denied, 14-901 (La. 8/25/14), 147 So.3d 1117. As noted in La.Code Civ.P. art. 966(A)(2), “[t]he summary, judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action .... The procedure is favored and shall be construed to accomplish these ends.” On de novo review, “there is no deference to the-trial judge’s legal findings, and we make an independent review of the evidence in determining whether there is no genuine issue of material fact and whether the mover is entitled to judgment -as a -matter of law under La.Code Civ.P. art. 966.” Bridges, 153 So.3d at 1145. “A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755.

Hanks v. La. Cos., 16-334, p. 9 (La.App. 3 Cir. 12/14/16), 205 So.3d 1048, 1056 (footnote omitted), writ denied, 17-260 (La. 5/19/17), 220 So.3d 749.

, According to La.Code Civ.P. art. 96.6(D)(1):

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion ■ for summary judgment, the mover’s burden on the. motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather -to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support | ¡¡sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Louisiana Code of Civil Procedure Article 967(B) further provides that:

When a motion for summary judgment is made and supported ..., an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

DISCUSSION

Relator asserts that the trial court erred in denying its motion for summary judgment. Relator takes the position that coverage for Plaintiffs claim is excluded under Exclusion-A of its policy. That exclusion provision, in pertinent part, reads as follows (italics added):

GENERAL EXCLUSIONS
A. ,We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or ih any sequence to the loss.
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2. Earth Movement, meaning earthquake including land shock waves or tremors before, during or after volcanic eruption; landslide; mine subsidence; mudflow; earth sinking, rising or shifting; -unless direct loss by:
a. fire; or -
b. explosion;
ensues and then we will pay only for the ensuing loss.

Relator notes that Plaintiff alleges that the impact of the vehicle striking his house caused damage to his pier and beam foundation. Relator contends, however, that Plaintiff has not furnished any evidence to show that the damage to the foundation of his house was caused' by-the accident. Relator maintains that it, on the other hand, retained an expert whose affidavit establishes that the damage to |4the foundation of Plaintiffs house was not due to anything other than movement or settlement of the earth. In that regard, Relator notes that its expert, Joe D. Hughes, a registered professional engineer in Louisiana and Texas, examined Plaintiffs house and concluded that the conditions in its foundation were the result of long-term, ongoing problems caused by differential earth movement, rather than by the lateral impact by a vehicle. Relator points out that Mr. Hughes’s opinion was based on factors such as the lack of evidence of lateral movement of the girders, and the fact that a significant amount of repairs had been performed on the foundation in the past. Further, Relator notes that Mr. Hughes’s report suggests that the particular area of land upon which Plaintiffs house sits is subject to drought, which is a common cause of earth settlement. Relator asserts that coverage is excluded for Plaintiffs claim because the policy at issue excludes coverage for Tosses caused by the earth sinking, rising, or shifting, unless direct loss is caused by fire or explosion. Relator contends that while it has submitted ample proof that coverage is excluded under its policy, Plaintiff has failed to submit any evidence to show that there is coverage under the policy.

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Related

Bridges v. Cepolk Corp.
153 So. 3d 1137 (Louisiana Court of Appeal, 2014)
Hanks v. Louisiana Companies
205 So. 3d 1048 (Louisiana Court of Appeal, 2016)
Hanks v. Louisiana Companies
220 So. 3d 749 (Supreme Court of Louisiana, 2017)
Flournoy v. Our Lady of Lourdes Regional Medical Center, Inc.
222 So. 3d 103 (Louisiana Court of Appeal, 2017)
Smitko v. Gulf South Shrimp, Inc.
94 So. 3d 750 (Supreme Court of Louisiana, 2012)

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Bluebook (online)
230 So. 3d 1008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castain-v-american-summit-insurance-co-lactapp-2017.