Dunn v. Potomac Ins. Co. of Illinois

657 So. 2d 660, 1995 WL 377138
CourtLouisiana Court of Appeal
DecidedJune 23, 1995
Docket94 CA 2202
StatusPublished
Cited by15 cases

This text of 657 So. 2d 660 (Dunn v. Potomac Ins. Co. of Illinois) 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
Dunn v. Potomac Ins. Co. of Illinois, 657 So. 2d 660, 1995 WL 377138 (La. Ct. App. 1995).

Opinion

657 So.2d 660 (1995)

Mary DUNN,
v.
POTOMAC INSURANCE COMPANY OF ILLINOIS and William Thibodeaux, Individually and/or d/b/a Forrest Builders and/or d/b/a Forrest Brothers.

No. 94 CA 2202.

Court of Appeal of Louisiana, First Circuit.

June 23, 1995.

*661 Ronald J. Favre, Slidell, for plaintiff/appellant #3 Mary Dunn.

C. Michael Pfister, Metairie, for defendants/appellants # 1 William Thibodeaux, Individually and/or d/b/a Forrest Builders.

James L. Donovan, Metairie, for defendants/appellants # 2 William Thibodeaux & USF & G.

Brian T. Carr, Metairie, for defendant Potomac Ins. Co.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

CARTER, Judge.

This is an appeal from a trial court judgment in a tort suit for damages.

FACTS

On or about December 27, 1990, petitioner, Mary Dunn, was a guest at 170 Pirates Harbor[1] in Slidell, Louisiana. Defendant, William Thibodeaux, owned the Pirates Harbor premises where he resided and had a place of business. On that day, as Dunn was leaving the Pirates Harbor premises, she allegedly slipped and fell on a foreign substance located on the stairs leading from the building. As a result of this fall, Dunn allegedly sustained injuries.

On September 4, 1991, Dunn filed the instant suit for damages against Thibodeaux, individually and as William Thibodeaux d/b/a Forrest Builders or Forrest Brothers, and *662 Potomac Insurance Company of Illinois (Potomac), liability insurer of Thibodeaux, Forrest Builders, or Forrest Brothers. Potomac thereafter filed a third party demand against United States Fidelity & Guaranty Insurance Company (USF & G), seeking indemnity or contribution. In its third party demand, Potomac alleged that USF & G issued a policy of liability insurance for Thibodeaux and Forrest Builders or Forrest Brothers for the Pirates Harbor premises. Dunn subsequently amended her petition to name USF & G as an additional defendant.

On May 5, 1993, Thibodeaux, individually and d/b/a Forrest Builders, filed a cross claim against Potomac and USF & G, requesting indemnity and contribution. Thibodeaux alleged that he was made an original defendant in the proceedings filed by Dunn, and that USF & G issued a policy of insurance to him, individually and as Forrest Builders, providing coverage for the allegations set forth in Dunn's petition. Thibodeaux also alleged that Potomac issued a policy of insurance to him, individually and as Forrest Builders, providing coverage for the allegations set forth in Dunn's petition.

On May 25, 1994, Potomac filed a motion for summary judgment on the grounds that its policy did not afford coverage for the alleged accident or for the injuries allegedly sustained by Dunn. In support of its motion for summary judgment, Potomac attached excerpts of the depositions of Dunn and Thibodeaux and a copy of the Potomac policy.

Thibodeaux and USF & G opposed the motion for summary judgment, attaching excerpts of Thibodeaux's deposition. Dunn also opposed the motion for summary judgment. In her opposition, Dunn attached excerpts of the Thibodeaux deposition and portions of the Potomac insurance policy. After a hearing on July 5, 1994, the trial judge granted Potomac's motion for summary judgment and dismissed Dunn's claims against Potomac at her cost. The judgment granting the motion for summary judgment was signed on July 8, 1994.

From this adverse judgment, Thibodeaux, USF & G, and Dunn appeal, assigning as the sole issue whether the trial court correctly granted Potomac's motion for summary judgment.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d 1115, 1120 (La.App. 2nd Cir.), writ denied, 587 So.2d 695 (La.1991). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Thompson v. South Central Bell Telephone Company, 411 So.2d 26, 27 (La.1982); Legros v. Norcen Exploration, Inc., 583 So.2d 859, 860 (La.App. 1st Cir.), writs denied, 588 So.2d 101, 109 (La.1991).

A fact is material if its existence is essential to the plaintiff's cause of action under the applicable theory of recovery and without which the plaintiff could not prevail. Material facts are those that potentially insure or preclude recovery, affect the litigant's ultimate success, or determine the outcome of a legal dispute. Penalber v. Blount, 550 So.2d 577, 583 (La.1989).

The burden is upon the mover for summary judgment to show that no genuine issue of material fact exists, and only when reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law is summary judgment warranted. Robertson v. Our Lady of Lake Regional Medical Center, 574 So.2d 381, 384 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1136 (La.1991). To satisfy this burden, the mover must meet a strict standard by showing that it is quite clear what the truth is and excludes any real doubt as to the existence of material fact. Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d at 1120. The court must closely scrutinize the papers supporting the position of the mover, while the papers of the party opposing the motion are to be treated indulgently. Ortego v. Ortego, 425 So.2d *663 1292, 1297 (La.App. 3rd Cir.1982), writ denied, 429 So.2d 147 (La.1983).

Summary judgments are not favored and should be used cautiously and sparingly. Penalber v. Blount, 550 So.2d at 583. In determining whether material facts have in fact been disposed of, any doubt is to be resolved against granting the summary judgment and in favor of trial on the merits. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980). This is true even if grave doubt exists as to a party's ability to establish disputed facts at trial. Equipment, Inc. v. Anderson Petroleum, Inc., 471 So.2d 1068, 1070-71 (La.App. 3rd Cir.1985). Where the trial court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits, and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Jones v. Briley, 593 So.2d 391, 393 (La.App. 1st Cir.1991).

Appellate courts are to review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Sun Belt Constructors, a Division of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350, 352 (La.App. 5th Cir.1988).

LIABILITY INSURANCE COVERAGE

The issue before the court is whether the policy issued by Potomac provided coverage to Thibodeaux and/or Forrest Builders for the injuries sustained by Dunn.

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657 So. 2d 660, 1995 WL 377138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-potomac-ins-co-of-illinois-lactapp-1995.