Doe v. Smith

573 So. 2d 238, 1990 WL 211384
CourtLouisiana Court of Appeal
DecidedDecember 18, 1990
Docket89 CA 1863
StatusPublished
Cited by23 cases

This text of 573 So. 2d 238 (Doe v. Smith) 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
Doe v. Smith, 573 So. 2d 238, 1990 WL 211384 (La. Ct. App. 1990).

Opinion

573 So.2d 238 (1990)

Mr. & Mrs. John DOE[1]
v.
Mr. John SMITH.

No. 89 CA 1863.

Court of Appeal of Louisiana, First Circuit.

December 18, 1990.
Writ Denied January 31, 1991.

*239 Robert E. Kleinpeter, Steven R. Giglio, Baton Rouge, for plaintiffs-appellants Mr. and Mrs. John Doe.

John W. Perry, Baton Rouge, for defendant-appellee Allstate Ins. Co.

Mary H. Barrios, Baton Rouge, for defendant-appellee Mr. John Smith.

Before LOTTINGER, SHORTESS and CARTER, JJ.

CARTER, Judge.

This is an appeal from a trial court judgment granting a motion for summary judgment.

FACTS

On June 27, 1986, plaintiffs, Mr. & Mrs. John Doe individually and on behalf of their minor daughter, filed suit for physical, mental, and emotional damages against their neighbor Mr. John Smith. In their petition, plaintiffs alleged that between 1975 and December of 1984, Smith molested their minor daughter by performing numerous illicit acts, including fondling the child's genitals and forcing her to perform oral sex upon him.[2] Plaintiffs further alleged that Smith concealed his activities by threatening their minor daughter. Plaintiffs subsequently amended their petition naming Allstate Insurance Company (Allstate), Smith's homeowner's insurer, as an additional defendant.

Both Smith and Allstate answered plaintiffs' petitions denying the allegations. Thereafter, Allstate filed a motion for summary judgment attaching a copy of the policy of homeowner's insurance.[3] The matter was heard on July 21, 1989. On that same day, plaintiffs filed a rule seeking to compel Smith to submit to a mental examination to determine whether Smith had the requisite intent to invoke the exclusionary clause of the insurance policy. The trial judge subsequently granted Allstate's motion for summary judgment, dismissing plaintiffs' suit against Allstate and reserving plaintiffs' rights against Smith, and denied the plaintiffs' rule for mental examination for purposes of the summary judgment.[4]

From this adverse judgment, plaintiffs appeal assigning the following errors:

1. The trial court erred in granting summary judgment in favor of Allstate Insurance Company.
2. The trial court erred in applying Allstate Insurance Company's exclusionary clause and finding that the insured defendant intended bodily injury, or was substantially certain of bodily injury.
3. The trial court erred in refusing plaintiff's request for mental examination prior to ruling on Allstate Insurance Company's motion for summary judgment.
4. The trial court erred in apparently applying a presumption that the insured defendant intended the natural and probable consequences of his acts of nonviolent molestation of the minor herein.
5. The trial court erred in apparently applying a presumption that the insured defendant was sane.
*240 6. The trial court erred in presuming bodily injury.

The central issue presented is whether the language of the Allstate policy excludes coverage for Smith's alleged acts of molestation.

MENTAL EXAMINATION

Plaintiffs contend that the trial court erred in denying their request for a mental examination of Smith for purposes of the summary judgment. Plaintiffs also raise the issue of Smith's sanity.

First, we note that, in neither their pleadings nor at the motion for summary judgment, did plaintiffs allege that Smith was insane. On appeal, plaintiffs merely contend that the trial judge erred in presuming that Smith was sane.

The law is clear that the party alleging insanity bears the burden to affirmatively prove it, since the law presumes that all persons are sane. Preston v. Granger, 517 So.2d 1125, 1130 (La.App. 5th Cir.1987), writ denied, 519 So.2d 142 (La.1988); von Dameck v. St. Paul Fire & Marine Ins. Co., 361 So.2d 283, 286 (La.App. 1st Cir.), writs denied, 362 So.2d 794, 802 (La.1978). If, however, the presumption of sanity is successfully rebutted, the insurer then has the burden of proving the applicability of its exclusionary clause by a preponderance of the evidence or be cast in liability. Preston v. Granger, 517 So.2d at 1130; Nettles v. Evans, 303 So.2d 306, 309 (La.App. 1st Cir.1974).

Clearly, Smith is presumed sane, and, as plaintiffs did not rebut this presumption, they cannot now complain of any alleged application of this legal presumption.

Second, although plaintiffs made an allegation in their amended petition that Smith was "compelled" to perform the acts of molestation upon their child, they did not produce any evidence at the motion for summary judgment supporting this allegation. Instead, on the day of the hearing on the motion for summary judgment, plaintiffs filed a rule for a mental examination. Plaintiffs now complain that the trial court erred in granting the summary judgment without permitting their mental examination of Smith.

In Spellman v. Peoples Bank and Trust Company of St. Bernard, 544 So.2d 10, 11 (La.App. 4th Cir.), writ denied, 548 So.2d 327 (La.1989), and Fisk v. Mathews, 525 So.2d 223, 226 (La.App. 1st Cir.1988), the courts addressed similar issues regarding requested discovery and motions for summary judgment.

It is within the trial judge's discretion to grant a motion for summary judgment before the completion of discovery subject to the sole requirement that the parties are to be given an opportunity to present their claim. Simoneaux v. E.I. du Pont de Nemours & Co., Inc., 483 So.2d 908, 912 (La.1986); Spellman v. Peoples Bank and Trust Company of St. Bernard, 544 So.2d at 11.

In the instant case, Allstate filed its motion for summary judgment on May 4, 1989. Although it was originally scheduled to be heard on June 9, 1989, it was reassigned for hearing on July 21, 1989. Plaintiffs did not file their rule for the mental examination until July 21, the day of the hearing on the motion for summary judgment. The trial judge did not err in ruling on the summary judgment without requiring the mental examination.

SUMMARY JUDGMENT

We must now examine the motion for summary judgment together with its pleadings, affidavits, and exhibits to ascertain whether the trial court properly determined that Allstate is entitled to judgment as a matter of law.

It is well settled that a summary judgment should be granted only if there is no genuine issue of material fact and mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Penalber v. Blount, 550 So.2d 577, 583 (La.1989); Chaisson v. Domingue, 372 So.2d 1225, 1227 (La.1979); Fisk v. Mathews, 525 So.2d at 226. Summary procedure should be used cautiously and sparingly, and any reasonable *241 doubt should be resolved against mover in favor of full trial on the merits. Penalber v. Blount, 550 So.2d at 583. The burden of proof is on the mover to establish there are no genuine issues of material fact. A "fact" is material if its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. In other words, facts are "material" if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. This burden is exacting. Penalber v. Blount, 550 So.2d at 583; American Bank & Trust Co. v. Vinson, 528 So.2d 693, 694 (La.App. 2nd Cir.1988).

Under LSA-C.C.P. art.

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573 So. 2d 238, 1990 WL 211384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-smith-lactapp-1990.