STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 1472
BRILLIANT NATIONAL SERVICES, INC.
VERSUS
THE TRAVELERS INDEMNITY COMPANY AND LEXINGTON INSURANCE COMPANY
JUDGMENT RENDERED: SEP 0 7 2022
Appealed from The Nineteenth Judicial District Court Parish of East Baton Rouge - State of Louisiana Docket Number 656, 308 - Section 24
The Honorable Donald R. Johnson, Presiding Judge
James K. Ordeneaux COUNSEL FOR APPELLANT Scott H. Mason PLAINTIFF/ DEFENDANT- IN- G. Bruce Parkerson RECONVENTION— Brilliant New Orleans, Louisiana National Services, Inc.
Amy S. Malish COUNSEL FOR APPELLANTS Maura Z. Pelleteri DEFENDANTS- IN- New Orleans, Louisiana RECONVENTION— Brilliant National Services, Inc. and Coastal Chemical Company, LLC
Tina L. Kappen COUNSEL FOR APPELLEES C61este D. Elliott DEFENDANTS/ PLAINTIFFS- IN- New Orleans, Louisiana REcONVENTION— The
Travelers Indemnity Company, The Charter Oak Fire Insurance Company, The Phoenix Insurance Company, and United States Fidelity and Guaranty Company
Inc Lj BEFORE: MCCLENDONq WELCH, AND THERIOT, JJ. WELCH, J.
In this insurance coverage dispute, the plaintiff, Brilliant National Services,
Inc. (" Brilliant"), appeals a summary judgment rendered in favor of the
defendants— The Travelers Indemnity Company, The Charter Oak Fire Insurance
Company, The Phoenix Insurance Company, and United States Fidelity and
Guaranty Company ( collectively, " Travelers" or " Travelers companies") --- which
dismissed all of Brilliant' s claims against Travelers with prejudice and declared
that Travelers has no duty to provide insurance coverage to Brilliant or Coastal
Chemical Company, LLC (" CCC, LLC") under the policies at issue. We affirm.
In a related appeal - 2021 CA 1471— Brilliant and CCC, LLC challenge a
summary judgment rendered in favor of Lexington Insurance Company, which
dismissed all of Brilliant' s claims against Lexington with prejudice and declared
that Lexington has no duty to defend or indemnify CCC, LLC.
FACTS AND PROCEDURAL HISTORY
Brilliant filed suit against Travelers' ( among other defendants), seeking
contribution for the costs of defending CCC, LLC in a number of asbestos -
exposure personal injury lawsuits filed in various state courts in Louisiana,
beginning in 2011. 2 Brilliant alleged that the Travelers companies issued various
general liability insurance policies to their insureds between 1969 and 1982
Travelers policies"). Brilliant alleged that certain plaintiffs in the underlying
asbestos lawsuits claimed that CCC, LLC was the successor to an insured entity
under the Travelers policies that allegedly manufactured, distributed, marketed, or
sold asbestos -containing products. Brilliant claimed that if CCC, LLC was found
Brilliant filed an original petition for damages, as well as first, second, and third supplemental and amending petitions for damages. 2 Brilliant' s original petition identified seventy- nine suits filed against CCC, LLC.
Subsequently, one additional plaintiff filed suit against CCC, LLC. See Phillip Morris Percle, Sr. v. ANCO Insulations, Inc., Docket No. 2019- 1016, Civil District Court, Parish of Orleans, State of Louisiana. According to the record, all plaintiffs in the underlying asbestos lawsuits have since dismissed their claims against CCC, LLC, with the exception of the Percle lawsuit.
W to be the successor to an entity insured under the Travelers policies, then the
insured entity' s rights under the policies transferred to CCC, LLC by operation of
law. Brilliant further alleged that regardless of whether CCC, LLC was the
successor of an entity insured under the Travelers policies, Travelers owed CCC,
LLC a duty to defend based on the allegations raised in the underlying asbestos
lawsuits and the terms and conditions of the Travelers policies. Accordingly,
Brilliant sought declaratory judgment that Travelers owed a duty to defend CCC,
LLC in the underlying asbestos lawsuits. Brilliant also sought judgment in its
favor and against Travelers for damages; a 1/ 7 virile share from each of the
Travelers companies for attorney' s fees and costs paid by Brilliant in defense of
CCC, LLC in the underlying asbestos lawsuits; and legal interest, costs, and all
other relief to which Brilliant may be entitled.
Travelers answered, raising numerous affirmative defenses and filing a
reconventional demand against Brilliant and CCC, LLC.3 In the reconventional
demand, Travelers sought a declaration that Brilliant and CCC, LLC have no rights
under the Travelers policies and/ or that there is no coverage for the contractual
obligations assumed by Brilliant. Travelers further soughtdismissal of Brilliant' s
claims with prejudice, at its sole costs, and for all other equitable and legal relief
deemed just and proper.'
Thereafter, Travelers moved for summary judgment, seeking a dismissal
with prejudice of Brilliant' s claims at Brilliant' s costs. Travelers further sought a
declaration that Travelers does not owe any insurance coverage obligations under
3 Travelers answered Brilliant' s original petition for damages. Thereafter, Brilliant filed first and second supplemental and amending petitions for damages, naming The Charter Oak Fire Insurance Company as an additional defendant. Travelers and The Charter Oak Fire Insurance Company responded to those petitions. Brilliant then filed a third supplemental and amending petition, adding The Phoenix Insurance Company and United States Fidelity and Guaranty Company as defendants, to which the Travelers companies responded. In its response, Travelers indicated that its answer, as amended, on behalf of all the Travelers companies superseded any prior answers and reconventional demands filed by Travelers and The Charter Oak Fire Insurance Company.
4 Brilliant and CCC, LLC answered Travelers' reconventional demand.
3 any of the Travelers policies to Brilliant or CCC, LLC because neither Brilliant nor
CCC, LLC is an " insured" or otherwise entitled to coverage under the Travelers
policies.
Brilliant and CCC, LLC opposed Travelers' motion for summary judgment.'
In a timely -filed reply memorandum, Travelers objected to two exhibits submitted
by Brilliant and CCC, LLC in support of their opposition— Exhibit 4 and Exhibit
Following a hearing on Travelers' motion for summary judgment, the trial
court took the matter under advisement and ordered the parties to submit post -
hearing proposed findings of fact, burdens of proof, conclusions of law, rulings on
Travelers' evidence objections, and a proposed judgment.
In a judgment signed on October 8, 2020, the trial court granted Travelers'
motion for summary judgment; dismissed all of Brilliant' s claims against Travelers
with prejudice; and declared that Travelers does not have any coverage obligations
under the Travelers policies to Brilliant or CCC, LLC because neither Brilliant nor
CCC, LLC is an insured. The trial court adopted Travelers' proposed findings of
fact and conclusions of law as its reasons for judgment. Brilliant and CCC, LLC
now appeal.'
SUMMARY JUDGMENT ON INSURANCE COVERAGE
Whether an insurance policy, as a matter of law, provides or precludes
coverage is a dispute that can be properly resolved within the framework of a
motion for summary judgment. George S. May Int' l Co. v. Arrowpoint Capital
Corp., 2011- 1865 ( La. App. 1St Cir. 8/ 10/ 12), 97 So. 3d 1167, 1171. Summary
judgment declaring a lack of coverage under an insurance policy may not be
s The trial court granted Brilliant and CCC, LLC' s ex parte motion to file their memorandum, statement of genuinely disputed material facts, and exhibits in opposition under seal. 6 Brilliant and CCC, LLC filed a motion for devolutive appeal on December 10, 2020. The trial court signed an order of appeal on December 10, 2020, notice of which was transmitted by the Clerk of Court to the parties on December 11, 2020.
0 rendered unless there is no reasonable interpretation under which coverage could
be afforded when applied to the undisputed material facts shown by the evidence
supporting the motion. Smith v. Moreau, 2017- 0003 ( La. App. 1St Cir. 6/ 2/ 17),
222 So. 3d 761, 765. Absent a conflict with statutory provisions or public policy,
insurers are entitled to limit their liability and impose and enforce reasonable
conditions upon the policy obligations they contractually assume. Hickey v.
Centenary Oyster House, 97- 1074 ( La. 10/ 20/ 98), 719 So. 2d 421, 425. An
insurer seeking to avoid coverage through summary judgment bears the burden of
proving some exclusion applies to preclude coverage. Smith, 222 So. 3d at 765.
Appellate courts review summary judgments de novo under the same criteria
that govern the district court' s consideration of whether summary judgment is
appropriate. Guste v. Lirette, 2017- 1248 ( La. App. 1St Cir. 6/ 4/ 18), 251 So. 3d
1126, 1129.' Where the facts are undisputed and the matter presents a purely legal
question, summary judgment is appropriate. See Landry v. Progressive Sec. Ins.
Co., 2021- 00621 ( La. 1/ 28/ 22), So. 3d , 2022 WL 263003, at * 3.
DISCUSSION
DUTY TO DEFEND
In their first assignment of error, Brilliant and CCC, LLC argue that the trial
court erred in declaring that Travelers had no duty to defend or indemnify CCC,
LLC in the underlying asbestos lawsuits. In their related second assignment of
7 In its brief on appeal, Travelers objected to the appellants' reliance on exhibits that were not attached to their opposition. Brilliant and CCC' s opposition stated:
In support of their Opposition, Brilliant [ and CCC, LLC] adopt by reference and incorporate herein their Memorandum in Opposition to Lexington Insurance Company' s Motion for Summary Judgment, along with the Affidavit, Exhibits[,] and Statement of Genuinely Disputed Material Facts. To the extent Brilliant and CCC, LLC attempted to adopt by reference its opposition memorandum, affidavit, exhibits, and statement of disputed material facts that were filed in opposition to a different motion for summary judgment in the related case ( 2021 CA 1471), we
note that only the documents filed in support of or in opposition to the motion for summary judgment before the court may be considered. See La. C. C. P. art. 966( A)( 2) and ( D)( 2). In our de novo review, we only consider the evidence that was attached in support of Brilliant and CCC, LLC' s opposition to Travelers' motion. See, e. g., Tillman v. Nationwide Mut. Ins. Co., 2020- 0250 ( La. App. I` Cir. 2/ 22/ 21), 321 So. 3d 1017, 1022, writ denied, 2021- 00429 ( La. 5/ 25/ 21).
E error, the appellants argue that genuine issues of material fact exist as to whether
CCC, LLC is the successor to Travelers' insured, i.e., the entity that allegedly
distributed the products at issue in the underlying asbestos lawsuits. The
appellants argue these genuine issues of material fact should have precluded the
trial court from granting summary judgment in Travelers' favor.
An insurer' s duty to defend its insured arises solely under contract.
Arceneaux v. Amstar Corp., 2015- 0588 ( La. 9/ 7/ 16), 200 So. 3d 277, 286. An
insurer' s duty to defend its insured is determined by the allegations of the
plaintiff' s petition, with the insurer obligated to furnish a defense unless from the
petition, it is clear the policy unambiguously excludes coverage. Guste, 251 So. 3d
at 1133. If, assuming the allegations of the petition are true, there is both coverage
under the policy and liability to the plaintiff, the insurer must defend the insured
regardless of the outcome of the suit. Guste, 251 So. 3d at 1133. An insurer' s duty
to defend suits on behalf of an insured presents a separate and distinct inquiry from
that of the insurer' s duty to indemnify a covered claim after judgment against the
insured in the underlying liability case. See Elliott v. Cont' l Cas. Co., 949 So. 2d
1247, 1250 ( La. 2/ 22/ 07), 949 So. 2d 1247, 1250.
The Travelers Policies: Is CCC, LLC an " insured'?
In moving for summary judgment, Travelers argued that it had no duty to
defend or indemnify CCC, LLC, nor its alleged subrogee, Brilliant, because CCC,
LLC is not and has never been one of Travelers' " insureds" under any of the
Travelers policies. Travelers' evidence submitted in support of its motion for
summary judgment show that the Travelers companies issued the following
policies:
Phoenix Policy
The Phoenix Insurance Company issued policy number L- 69- 92- 87
Phoenix policy") to Coastal Chemicals, Inc. and Coastal Chemical Co. of
3 California, Inc. The Phoenix policy was effective from February 1, 1969, to
February 1, 1970. The Phoenix policy' s " duty to defend" provision set forth:
I. COVERAGE Y— CONTRACTUAL BODILY INJURY LIABILITY
COVERAGE Z,—CONTRACTUAL PROPERTY DAMAGE LIABLITY
The company will pay on behalf of the insured all sums which the insured ...shall become legally obligated to pay as damages because of Coverage Y. bodily injury or Coverage Z. property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of this suit are groundless, false[,] or
fraudulent, and may make such investigation and
settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company' s liability has been exhausted by payment ofjudgments or settlements.
The Phoenix policy defined " named insured" as:
named insured" means the person or organization
named in Item 1 of the declarations of this policy[.]
Item 1 of the Phoenix policy lists the " named insured" as Coastal Chemicals, Inc.
and Coastal Chemical Co. of California, Inc. The Phoenix policy defined
insured" as:
insured" means any person or organization qualifying as an insured in the " Persons Insured" provision of the applicable insurance coverage. The insurance afforded applies separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the company' s liability[.]
The Phoenix policy defined " Persons Insured" as:
II. PERSONS INSURED
Each of the following is an insured under this insurance to the extent set forth below:
a) if the named insured is designated in the declarations as an individual, the person so designated;
7 b) if the named insured is designated in the declarations as a partnership or joint venture, the partnership or joint venture so designated[,] and any partner or member thereof[,] but only with respect to his liability as such;
c) if the named insured is designated in the declarations as other than an individual, partnership[,] or joint venture, the organization so designated[,] and any executive officer, director[,] or stockholder thereof
while acting within the scope of his duties as such.
Coastal Chemicals, Inc. and Coastal Chemical Co. of California, Inc. were
the " Persons Insured" under the Phoenix policy. There is no dispute that the
Phoenix policy expired prior to the formation of CCC, LLC' s predecessor, which
was incorporated in 1987. Because neither CCC, LLC nor its predecessor was a
party to the Phoenix policy, CCC, LLC cannot be a " named insured" under the
Phoenix policy. Furthermore, neither CCC, LLC nor its predecessor falls into the
definition of "insured" or " Persons Insured" under the Phoenix policy.
TIC Policies
The Travelers Indemnity Company (" TIC") issued four pertinent general
liability policies— first, policy number NSL- 4203276 to Coastal Chemical, Inc.
and Coastal Chemical of California, Inc. The policy was effective from February
1, 1970, to February 1, 1971. Second, TIC issued policy number NSL- 6530600 to
Coastal Chemical, Inc. and Coastal Chemical of California, Inc. The policy was
effective from February 1, 1971, to February 1, 1972. Third, TIC issued policy
number NSL- 7603131 to Coastal Chemical, Inc. and Coastal Chemical of
California, Inc. The policy was effective from February 1, 1972, to February 1,
1973. Finally, TIC issued policy number NSL- 316A815- 9 to the first Coastal
Chemical Co., Inc. and Coastal Industries, Inc. The policy was effective from
February 1, 1973, to February 1, 1974. The " duty to defend" provisions set forth:
I. Coverage A— Bodily Injury Liability Coverage B— Property Damage Liability
8 The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage A. bodily injury or Coverage B. property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false[,] or
settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company' s liability has been exhausted by payment ofjudgments or settlements.
The TIC policies defined " named insured" as:
Item 1 of the declarations of the TIC policies list the " named insured" as Coastal
Chemical of California, Inc.; Coastal Chemical Co., Inc.; and Coastal Industries,
Inc. The TIC policies define " insured" as:
insured" means any person or organization qualifying as an insured in the " Persons Insured" provision of the applicable insurance coverage.
The TIC policies define " Persons Insured" as:
Each of the following is an insured under this insurance to the extent set forth below:
a) if the named insured is designated in the declarations as an individual, the person so designated but only with respect to the conduct of a business of which he is the sole proprietor; 181 b) if the named insured is designated in the declarations as a partnership or joint venture, the partnership or joint venture so designated[,] and any partner or member thereof[,] but only with respect to his liability as such;
8 The fourth TIC policy, number NSL- 316A815- 9, added to this subsection, " and the spouse of the named insured with respect to the conduct of such a business[.]"
0 c) if the named insured is designated in the declarations as other than an individual, partnership[,] or joint venture, the organization so designated[,] and any executive officer, director[,] or stockholder thereof
while acting within the scope of his duties as such; d) any person ( other than an employee of the named insured) or organization while acting as real estate manager for the named insured....
This insurance does not apply to bodily injury or property damage arising out of the conduct of any partnership or joint venture of which the insured is a partner or member and which is not designated in this policy as a named insured.
Coastal Chemicals, Inc.; Coastal Chemical of California, Inc.; the first Coastal
Chemical Co., Inc.; and Coastal Industries, Inc. were the " Persons Insured" under
the TIC policies. There is no dispute that the TIC policies expired prior to the
formation of CCC, LLC' s predecessor, which was incorporated in 1987. Because
neither CCC, LLC nor its predecessor was a party to the TIC policies, CCC, LLC
cannot be a " named insured" under the TIC policies. Furthermore, neither CCC,
LLC nor its predecessor falls into the definition of "insured" or " Persons Insured"
under the TIC policies.
Charter Oak Policies
The Charter Oak Fire Insurance Company (" Charter Oak") issued two
pertinent general liability policies— first, policy number 650- 729A350- 3- COF- 74
to the first Coastal Chemical Co., Inc.; Coastal Chemical Industries; and Revalray,
Inc. The policy was effective from February 1, 1974, to February 1, 1975.
Second, Charter Oak issued policy number 650- 729A350- 3- COF- 75 to Coastal,
Inc. and Revalray, Inc. The policy was effective from February 1, 1975, to
February 1, 1976. The " duty to defend" provisions set forth:
A. Insuring Agreements 1. Comprehensive General Liability—Coverage A Bodily Injury) and Coverage B ( Property Damage)— The Travelers will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of:
10 a) bodily injury; or b) property damage; to which this insurance applies, caused by an occurrence. The Travelers shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false[,] or
settlement of any claim or suit as it deems expedient, but The Travelers shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of The Travelers' liability has been exhausted by payment of judgments or settlements.
The Charter Oak policies defined " named insured" as:
Named Insured" means the person or organization named in Item 2 of the GENERAL DECLARATIONS.
Item 2 of the general declarations of the Charter Oak policies list the " named
insured" as the first Coastal Chemical Co., Inc.; Coastal Chemical Industries;
Coastal, Inc.; and Revalray, Inc. The Charter Oak policies define " insured" as:
Insured" means any person or organization qualifying as an Insured in the " Persons Insured" provision. The insurance afforded applies separately to each Insured against whom claim is made or suit is brought, except with respect to the limits of The Travelers' liability.
The Charter Oak policies define " Persons Insured" as:
C. Persons Insured
1. Coverages A and B— Each of the following is an Insured to the extent set forth below: a) if the Named Insured is designated in the GENERAL DECLARATIONS as an individual, the person so designated but only with respect to the conduct of a business of which he is the sole proprietor[,] and the spouse of the Named Insured with respect to the conduct of such a business; b) if the Named Insured is designated in the GENERAL DECLARATIONS as a partnership or joint venture, the partnership or joint venture so designated[,] and any partner or member thereof[,] but only with respect to his liability as such; c) if the Named Insured is designated in the GENERAL DECLARATIONS as other than an individual, partnership[,] or joint venture, the organization so designated[,] and any executive officer, director[,] or
11 stockholder thereof while acting within the scope of his duties as such; d) any person ( other than an employee of the Named Insured) or organization while acting as real estate manager for the Named Insured....
This insurance does not apply to bodily injury or property damage arising out of the conduct of any partnership or joint venture of which the Insured is a partner or member and which is not designated in the GENEARL DECLARATIONS as a Named Insured.
The first Coastal Chemical Co., Inc.; Coastal Chemical Industries; Coastal,
Inc.; and Revalray, Inc. were the " Persons Insured" under the Charter Oak policies.
There is no dispute that the Charter Oak policies expired prior to the formation of
CCC, LLC' s predecessor, which was incorporated in 1987. Because neither CCC,
LLC nor its predecessor was a party to the Charter Oak policies, CCC, LLC cannot
be a " named insured" under the Charter Oak policies. Furthermore, neither CCC,
LLC nor its predecessor falls into the definition of "insured" or " Persons Insured"
under the Charter Oak policies.
USF& G Policies
United States Fidelity and Guaranty Company (" USF& G") issued three
pertinent general liability policies— first, policy number 1 CC D 47495 to Coastal,
Inc. The policy was effective from April 1, 1980, to April 1, 1981. Second,
USF& G issued policy number 1 CC E 25259 to Coastal, Inc. The policy was
effective from April 1, 1981, to April 1, 1982. Finally, USF& G issued policy
number 1 CC -017151046 to Coastal, Inc. The policy was effective from April 1,
1982, to November 1, 1982. The " duty to defend" provisions set forth:
I Coverage A—BODILY INJURY LIABILITY
Coverage B— PROPERTY DAMAGE LIABILITY
The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of
A. bodily injury or B. property damage
12 to which this insurance by an applies, caused
occurrence, and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false[,] or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company' s liability has been exhausted by payment ofjudgments or settlements.
The USF& G policies defined " named insured" as:
Item 1 of the declarations of the USF& G policies list the " named insured" as
Coastal, Inc. The USF& G policies define " insured" as:
Insured" means any person or organization qualifying as an insured in the " Persons Insured" provision of the applicable insurance coverage. The insurance afforded applies separately to each Insured against whom claim is made or suit is brought, except with respect to the limits of the Company' s liability[.]
The USF& G policies define " Persons Insured" as:
Each of the following is an Insured under this insurance to the extent set forth below:
a) if the Named Insured is designated in the
declarations as an individual, the person so designated but only with respect to the conduct of a business of which he is the sole proprietor ... ;191
b) if the Named Insured is designated in the
declarations as a partnership or joint venture, the
partnership or joint venture so designated[,] and any partner or member thereof[,] but only with respect to his liability as such; c) if the Named Insured is designated in the
declarations as other than an individual, partnership[,] or joint venture, the organization so designated[,] and
any executive officer, director[,] or stockholder
thereof while acting within the scope of his duties as such;
9 The fourth TIC policy, number NSL-316A815- 9, added to this subsection, " and the spouse of the named insured with respect to the conduct of such a business[.]"
13 d) any person ( other than an employee of the Named Insured) or organization while acting as real estate manager for the Named Insured....
This insurance does not apply to bodily injury or property damage arising out of the conduct of any partnership or joint venture of which the Insured is a partner or member and which is not designated in this policy as a Named Insured.
Coastal, Inc. was the " Persons Insured" under the USF& G policies. There is
no dispute that the USF& G policies expired prior to the formation of CCC, LLC' s
predecessor, which was incorporated in 1987. Because neither CCC, LLC nor its
predecessor was a party to the USF& G policies, CCC, LLC cannot be a " named
insured" under the USF& G policies. Furthermore, neither CCC, LLC nor its
predecessor falls into the definition of " insured" or " Persons Insured" under the
USF& G policies.
Successor Liability
Because Brilliant and CCC, LLC are not " Persons Insured," " named
insureds," or " insureds" under the Travelers policies, CCC, LLC could only be
entitled to coverage under the Travelers policies if CCC, LLC is the " successor" to
an entity insured under the Travelers policies.
The following facts are pertinent to the issue of successor liability. The
company alleged to have distributed the asbestos -containing products in the
asbestos lawsuits was incorporated in 1958 as the first " Coastal Chemical Co.,
Inc." In 1974, the first Coastal Chemical Co., Inc. amended its charter to change
its corporation' s name to " Coastal, Inc." In 1987, a new corporation named
Coastal Chemical Co., Inc." was incorporated ( i.e., the second Coastal Chemical
Co., Inc.). That same year, the newly incorporated second Coastal Chemical Co.,
Inc. acquired certain assets of Coastal, Inc. Coastal, Inc. remained in business and
continued to operate after the 1987 asset transfer. In 2010, Coastal, Inc. merged
with Coastal of Abbeville, LLC.
14 In 1998, CCC, LLC formed and merged with the second Coastal Chemical
Co., Inc., becoming the surviving entity. Regarding the merger of CCC, LLC and
the second Coastal Chemical Co., Inc., Brilliant specifically alleged: " when [ the
second] Coastal Chemical [ Co., Inc.] acquired [ Coastal, Inc.' s] assets in 1987, it
did not assume the liabilities of [Coastal, Inc.] Accordingly, [ CCC, LLC] did not
acquire the liabilities of [Coastal, Inc.] when it merged with [ the second] Coastal
Chemical [ Co., Inc.].
Despite this, appellants argue that because certain plaintiffs in the underlying
asbestos lawsuits alleged that CCC, LLC is the successor to the first Coastal
Chemical Company, Inc./ Coastal, Inc., Travelers owes CCC, LLC a duty to
defend, irrespective of whether the allegations of successor liability are ultimately
proven, or whether the plaintiffs prevail. Even though CCC, LLC has repeatedly
and expressly denied that it is the successor to the first Coastal Chemical
Company, Inc./ Coastal, Inc., the appellants argue that the plaintiffs in the
underlying asbestos lawsuits would have to establish CCC, LLC' s successor
liability in order to recover. Regardless of whether the plaintiffs prevail, the
appellants contend that Travelers owes CCC, LLC a duty to defend based on the
asbestos plaintiffs' allegations.
The basic principle of corporate successor liability was set forth by the
United States Supreme Court in Golden State Bottling Co., Inc. v. National
Labor Relations Board:
T] he general rule of corporate liability is that, when a corporation sells all of its assets to another, the latter is not responsible for the seller' s debts or liabilities, except where ( 1) the purchaser expressly or impliedly agrees to assume the obligations; ( 2) the purchaser is merely a continuation of the selling corporation; or ( 3) the
transaction is entered into to escape liability.
414 U. S. 1685 182 n.5, 94 S. Ct. 414, 424, 38 L.Ed.2d 388 ( 1973). Louisiana
Courts have followed this general rule of corporate successor liability. J.D. Fields
15 Co. v. Nottingham Const. Co., LLC, 2015- 0723 ( La. App. 1St Cir. 11/ 9/ 15),
184 So. 3d 99, 102.
Herein, the key consideration is whether the successor is in fact a
continuation" of the predecessor. See J.D. Fields & Co., 184 So. 3d at 103.
Brilliant and CCC, LLC point out that certain asbestos plaintiffs alleged that CCC,
LLC is a " continuation" of Coastal, Inc. and its former division, Coastal Chemical
Co., Inc. The extent to which a predecessor and a successor have common
shareholders, directors, officers, or even employees are pertinent considerations.
Further, prior business relationships should be considered, as should the continuity
of the identity of the business in the eyes of the public. J.D. Fields & Co., 184
So. 3d at 103. However, the threshold requirement to trigger a determination of
whether successor liability is applicable under the " continuation" exception is that
one corporation must have purchased all or substantially all the assets of another.
J.D. Fields & Co., 184 So. 3d at 103 ( citing Pichon v. Asbestos Defendants,
2010- 0570 ( La. App. 4th Cir. 11/ 17/ 10), 52 So. 3d 240, 244, writ denied, 2010- 2771
La. 2/ 4/ 11), 57 So. 3d 317). In the instant case, CCC, LLC has not argued that its
predecessor— the second Coastal Chemical Co., Inc.— purchased all the assets of
Coastal, Inc. in the 1987 asset transfer. CCC, LLC states that " Travelers' named
insured, Coastal, Inc., sold all its assets necessary to operate a chemical
distribution business to Coastal Chemical Co. Inc., [ CCC, LLC' s] predecessor by
merger." ( Emphasis added). There is no dispute that Coastal, Inc. retained assets
and remained in business after the 1987 asset transfer.
The appellants argue that summary judgment was improper because there
are genuine issues of material fact as to whether CCC, LLC is the successor to the
first Coastal Chemical Company, Inc./ Coastal, Inc.; however, there is no factual
dispute on the issue of successor liability. There is no evidence before the court
either in support of or in opposition to Travelers' motion for summary judgment as
16 to whether any of the Travelers policies were expressly transferred from any of
Travelers' insureds to CCC, LLC' s predecessor in the 1987 asset transfer or any
other merger documents. Further, there are no allegations in the underlying
asbestos lawsuits that CCC, LLC' s predecessor acquired all of Coastal, Inc.' s
assets and liabilities. Finally, CCC, LLC has expressly and repeatedly denied that
CCC, LLC is the successor to the first Coastal Chemical Company, Inc./ Coastal,
Inc.
The asbestos plaintiffs' allegations that CCC, LLC is the successor to
Coastal, Inc. are legal conclusions, not factual allegations. Any legal conclusions
regarding successor liability are irrelevant to any determination of Travelers'
defense obligation. It is well settled that allegations of fact contained in a petition,
and not the conclusions, determine the obligation to defend. Henly v. Phillips
Abita Lumber Co., 2006- 1856 ( La. App. 1st Cir. 10/ 3/ 07), 971 So. 2d 1104, 1114.
Coverage Follows Liability"
Brilliant and CCC, LLC further argue that under the theory of " coverage
follows liability," the right to recover under an insurance policy transfers by
operation of law when the liability for which the coverage is sought also transfers
by operation of law. " The right to recover under an insurance policy follows the
liability that the insurer underwrote." See P.R. Mallory & Co. v. Am. States Ins.
Co., No. 54C01 -0005 -CP -00156 ( Ind. Cir. Ct. July 29, 2004), 2004 WL 1737489,
at * 5 ( unpublished) ( citin Northern Insurance Co. of New York v. Allied Mut.
Ins. Co., 955 F. 2d 13531 1357 ( 9th Cir. 1992) (" the right to indemnity arising from
the policy] transferred together with the potential liability. This right to indemnity
followed the liability rather than the policy itself')). We note, however, that the
17 Northern Insurance case from which this theory of "coverage follows liability"
derives may no longer be good law.lo
As noted by Travelers, the " coverage follows liability" theory has never
been adopted in Louisiana." Louisiana law is clear that liabilities do not
automatically transfer, but must be in writing. La. C. C. art. 1821. Successor
liability does not entitle a successor, by operation of law, to the insurance coverage
of its predecessor in Louisiana. Any person alleging that CCC, LLC assumed the
first Coastal Chemical Company, Inc./ Coastal, Inc.' s delictual obligations must
demonstrate that the assumption was in writing. Courts must look to the contract
itself to determine whether liabilities were transferred. 12 See La. C. C. art. 1821;
J.D. Fields & Co., 184 So. 3d at 102.
There is no evidence before the court in support of or in opposition to
Travelers' motion for summary judgment as to whether any of the Travelers
policies were expressly transferred from any of Travelers' insureds to CCC, LLC' s
predecessor in the 1987 asset transfer or in any other merger documents. 13
to See Axis Reinsurance Co. v. Telekenex, Inc., 913 F. Supp.2d 793, 808 ( N.D. Cal. 2012). Subsequent decisions by California state courts raise questions as to the validity of the Northern Insurance rule, even in California. At least one California court of appeals has rejected outright the Northern Insurance rule. See Gen. Accident Ins. Co. v. Superior Ct., 55 Cal. App. 4th 1444, 1454, 64 Cal. Rptr. 2d 781, 788 ( 1997).
11 The U. S. Fifth Circuit Court of Appeals has also rejected the " coverage follows liability" theory in a case similar to the current matter, where a purchase agreement between two parties did not transfer a policy of insurance. The Fifth Circuit noted that the purchase agreement specifically excluded the insurance policy from the asset transfer agreement, holding that the parties clearly intended for the insurance coverage to remain with [ the policyholder]." Keller Foundations, Inc. v. Wausau Underwriters Ins. Co., 626 F. 3d 871, 876- 78 ( 5th Cir. 2010).
12 Louisiana may enforce certain post -loss transfers of liability insurance, entitling the assignee to certain rights:
There is no public policy in Louisiana which precludes an anti -assignment clause from applying to post -loss assignments. However, the language of the anti - assignment clause must clearly and unambiguously express that it applies to post -loss assignments. Thus, it is necessary for the federal district court to evaluate the relevant anti -assignment clauses on a policy -by -policy basis to determine whether the language is sufficient to prohibit post -loss assignments.
Emphasis added). In re Katrina Canal Breaches Litig., 2010- 1823 ( La. 5110111), 63 So. 3d 955, 964.
13 In support of the " coverage follows liability" theory, the appellants cite to AMEC Constr. Mgmt., Inc. v. Fireman' s Fund Ins. Co., No. CIV.A. 13- 718- JJB ( M.D. La. May 9, 2014),
18 Eitzht- Corners Rule"
Brilliant and CCC, LLC argue that based on the " eight -corners rule," the
allegations of the petitions in the underlying asbestos lawsuits and the terms of the
Travelers policies determine whether Travelers owes CCC, LLC a duty to defend.
The plaintiffs in the underlying asbestos lawsuits alleged they were exposed to
asbestos -containing products that were supplied and distributed by CCC, LLC
during the time period when the Travelers policies were issued to Coastal, Inc.;
Coastal Chemical, Inc.; and the first Coastal Chemical Company, Inc. Overlapping
with successor liability issues, certain asbestos plaintiffs alleged that CCC, LLC is
the successor to the first Coastal Chemical Company, Inc. and Coastal, Inc.
Accepting the asbestos plaintiffs' allegations as true, CCC, LLC would be liable
for conduct that took place during the effective dates of the Travelers policies. In
contrast, Travelers argues that there are no allegations against CCC, LLC in the
underlying asbestos lawsuits that trigger coverage under the Travelers policies.
Travelers contends that the appellants cannot rely on allegations of third parties
that CCC, LLC is an insured of Travelers.
Referred to as the " eight -corners rule" by our Supreme Court in American
Home Assurance Co. v. Czarniecki, 230 So. 2d 253, 259 ( La. 1969), an insurer
must look to the four corners of the petition and the four corners of the policy to
determine whether it has a duty to defend. Vaughn v. Franklin, 2000- 0291 ( La.
App. Pt Cir. 3/ 28/ 01), 785 So. 2d 79, 84, writ denied, 2001- 1551 ( La. 10/ 5/ 01), 798
2014 WL 1875264 ( unpublished). In AMEC, the insurer filed a Fed. R. Civ. P. 12( b)( 6) motion,
seeking a dismissal of an alleged successor entity' s complaint for " failure to state a claim upon which relief can be granted," which is similar to an exception of no cause of action in Louisiana state courts. The federal district court found that the complaint alleged facts sufficient to show that successor liability may exist under the corporate successor liability " continuation" exception, and that the alleged successor entity may be able to establish that its alleged predecessor' s insurer may have a duty to defend and indemnify under the policy at issue. AMEC Constr. Mgmt., Inc., 2014 WL 1875264, at * 3. The appellants mischaracterize the AMEC case, however, by claiming that the federal district court held that rights under a liability policy transfer by operation of law. The AMEC court merely denied an insurer' s Fed. R. Civ. P. 12( b)( 6) motion. The court did not make any substantive holding on the " coverage follows liability" theory, nor on an insurer' s duty to defend.
19 So. 2d 969. Cases applying the " eight -corners rule" hold that an insurer owes a
duty to defend if, assuming the factual allegations are true, there would be both ( 1)
coverage under the policy, and ( 2) liability to the plaintiff. Maldonado v. Kiewit
Louisiana Co., 2013- 0756 ( La. App. lst Cir. 3/ 24/ 14), 146 So. 3d 210, 218- 19.
When making this analysis, the allegations of the petition are liberally interpreted
in determining whether they set forth grounds that bring the claims within the
scope of the insurer' s duty to defend. An insurer' s duty to defend arises whenever
the pleadings against the insured disclose even a possibility of liability under the
policy. Although the allegations of the petition may ultimately turn out to be
incorrect or untrue, the insurer is still obligated to provide a defense. Vaughn, 785
So. 2d at 84. If, however, a petition does not allege facts within the scope of
coverage, an insurer is not required to defend a suit against its insured. Guste, 251
So. 3d at 1134.
Even though the asbestos plaintiffs allege that CCC, LLC supplied or
distributed asbestos -containing products to the asbestos plaintiffs' jobsites, those
allegations do not trigger coverage under the four corners of the Travelers policies.
As discussed in detail above, the pertinent provisions in the Travelers policies
clearly define " Persons Insured" and include only specific individuals in those
definitions. None of the asbestos plaintiffs' allegations could, even if proven,
transform CCC, LLC into an individual defined as a " Persons Insured" under the
Travelers policies— i.e., an executive officer, director, or stockholder of Coastal
Chemicals, Inc. or Coastal Chemical Co. of California, Inc. under the Phoenix
policy; an executive officer, director, or stockholder of Coastal Chemical, Inc.;
Coastal Chemical of California, Inc.; or Coastal Industries, Inc. under the TIC
policies; an executive officer, director, or stockholder of the first Coastal Chemical
Co., Inc.; Coastal Chemical Industries; Coastal, Inc.; or Revalray, Inc. under the
FA Charter Oak policies; or an executive officer, director, or stockholder of Coastal,
Inc. under the USF& G policies.
OPPOSITION EVIDENCE
In their third and final assignment of error, Brilliant and CCC, LLC argue
that the trial court erred in excluding Exhibit 4 and Exhibit 4A, submitted by
Brilliant and CCC, LLC in opposition to Travelers' motion for summary judgment.
Exhibit 4 is an affidavit of Brilliant' s authorized representative, Dennis St. George,
who attested that he is familiar with Brilliant' s business records. The affidavit
states in pertinent part: " Attached as Exhibit A is a true and correct copy of certain
portions of an Asset Purchase Agreement involving Brenntag, Inc." Exhibit 4A is
a heavily redacted version of an apparent asset purchase agreement referenced by
St. George in his affidavit.
In a timely -filed reply memorandum, Travelers objected to Exhibit 4 and
Exhibit 4A:
Travelers objects to Brilliant and [ CCC, LLC' s] submission of Exhibit 4 and Exhibit 4a, the almost
completely redacted/ incomplete copy of the Brilliant - CCC Agreement.... Brilliant should not be allowed to rely upon the Brilliant -CCC Agreement for any of its arguments which can hardly be said to be authenticated as being true and correct with heavy redactions and over at least 80 pages missing. There is a protective order in place and the documents have been filed under seal. There is no basis not [ to] submit the entire Brilliant -CCC AgreementJ141
The only documents that may be filed in support of or in opposition to the
motion are pleadings, memoranda, affidavits, depositions, answers to
interrogatories, certified medical records, written stipulations, and admissions."
La. C. C. P. art. 966( A)(4). Additionally, La. C. C. P. art. 966( D)( 2) sets forth that
a] ny objection to a document shall be raised in a timely filed opposition or reply
14 Travelers objected to Exhibit 4 to the extent the affidavit references the asset purchase agreement.
21 memorandum." Article 966( D)( 2) further provides that the trial court " shall
consider all objections prior to rendering judgment" and " shall specifically state on
the record or in writing which documents, if any, it held to be inadmissible or
declined to consider."
The trial court adopted Travelers' proposed findings of fact and conclusions
of law as its reasons for judgment. In ruling on Travelers' objection, the trial court
stated:
Despite having a protective order and filing under seal, Brilliant has submitted as Exhibit 4A a heavily redacted document with over 80 missing pages. It is impossible to discern what the Brilliant -CCC Agreement provides without the definitions and other provisions. See
13. 2. Documentary evidence— Original writing rule, 19 La. Civ. L. Treatise, Evidence And Proof § 13. 2 ( 2d ed.) The document itself could not be admitted, and the
Brilliant Affidavit does not satisfy the basic requirements to make this document admissible.
Affidavits must be based on personal knowledge and must set forth facts that would be admissible in evidence. La. Code Civ. Proc. Art. 967( A). Brilliant' s Affidavit is lacking any description as to what certain portions of the Brilliant -CCC Agreement are attached or even how the Affiant knows what is attached. The Affidavit does not satisfy the requirements of Article 967( A) because it does not establish that it was made on personal knowledge, show affirmatively that Affiant is competent to testify to the matters stated therein, or what portions of the
Brilliant -CCC Agreement are even being attached. See Unifund CCC Partners v. Perkins, 2012- 1851 ( La. App. 1 Cir. 9/ 25/ 13); 134 So. 3d 626, 632; Durand v. Graham, 2019- 1312 ( La. App. 1 Cir. 6/ 12/ 20); --- So. 3d ---, 2020 WL 3119036. Accordingly, Exhibit 4A and those portions of Exhibit 4 regarding Exhibit 4A are
inadmissible. However, as set forth below, even if these exhibits were considered in ruling on Travelers' Motion, Brilliant would not be able to maintain a claim in contract against Travelers under Louisiana law.
Louisiana Code of Civil Procedure article 967( A) provides, in pertinent part:
Supporting and opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein."
22 Personal knowledge encompasses only those facts that the affiant saw, heard, or
perceived with his own senses. Berard v. L-3 Communications Vertex
Aerospace, LLC, 2009- 1202 ( La. App. 1St Cir. 2/ 12/ 10), 35 So. 3d 334, 349, writ
denied, 2010- 0715 ( La. 6/ 4/ 10), 38 So. 3d 302. Furthermore, an affirmative
showing of competency cannot be established without a predicate showing of 1St personal knowledge. Unifund CCR Partners v. Perkins, 2012- 1851 ( La. App.
Cir. 9/ 25/ 13), 134 So. 3d 626, 631- 32.
With regard to business records, records of regularly conducted business
activity are not excluded by the hearsay rule, even though the declarant is available
as a witness. See La. C. E. art. 803( 6). A party who seeks to submit written
hearsay evidence pursuant to La. C. E. art. 803( 6) must authenticate it by a
qualified witness. The witness laying the foundation for admissibility of the
business records does not have to be the preparer of the records. A qualified
witness only needs to be familiar with the record-keeping system of the entity
whose business records are sought to be introduced. The custodian of the record or
other qualified witness must explain the record-keeping procedures of the business
and thus, lay the foundation for the admissibility of the records. Midland
Funding, LLC v. Stack, 2020- 1310 ( La. App. 1St Cir. 10/ 21/ 21), 2021 WL
4901976, at * 2 ( unpublished), writ denied, 2022- 00038 ( La. 3/ 2/ 22), 333 So. 3d
833.
St. George, by way of affidavit, states that he is " an authorized
representative of Brilliant" and has " access to" and is " familiar with the business
records [ ofJ Brilliant, formerly known as Brenntag, Inc." St. George states that the
attached sales agreement was " prepared or obtained in the regular course of
business." While St. George' s affidavit contains the assertion that he has " personal
knowledge," the affidavit contains no facts or information setting forth the basis of
his personal knowledge or his competency to testify to the matters stated in the
23 affidavit. The affidavit does not identify St. George' s position of employment, if
any, with Brilliant. It is not clear if St. George is a business records custodian of
Brilliant or other qualified witness, nor is it clear if he is aware of the process by
which Brilliant stores its business records. The affidavit does not disclose if St.
George has ever actually reviewed the Asset Purchase Agreement or has any
personal knowledge of its contents.
An affirmative showing of competency as required by La. C. C. P. art. 967( A)
cannot be established without a predicate showing of personal knowledge.
Unifund CCR Partners, 134 So. 3d at 631. St. George' s affidavit fails to establish
any predicate fact showing that he has personal knowledge of the sales agreement
and is competent to testify to the matters set forth in the affidavit. Therefore, the
affidavit does not satisfy the requirements of Article 967( A), is not competent
summary judgment evidence, was properly excluded by the trial court, and will not
be considered by this court on de novo review. See Unifund CCR Partners, 134
So. 3d at 632.
DECREE
For the reasons discussed herein, we affirm the trial court' s October 8, 2020
judgment. All costs of this appeal are assessed against the appellants, Brilliant
National Services, Inc. and Coastal Chemical Company, LLC.
AFFIRMED.