Ebarb v. Boswell

224 So. 3d 523, 2017 WL 3045501, 2017 La. App. LEXIS 1329
CourtLouisiana Court of Appeal
DecidedJuly 19, 2017
DocketNo. 51,445-CW
StatusPublished
Cited by2 cases

This text of 224 So. 3d 523 (Ebarb v. Boswell) 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
Ebarb v. Boswell, 224 So. 3d 523, 2017 WL 3045501, 2017 La. App. LEXIS 1329 (La. Ct. App. 2017).

Opinion

DREW, J.

|Jn this lawsuit stemming from a physical altercation at a business, the business’s insurer, Colony Insurance Company, sought supervisory review of the denial of its motion for summary judgment. We granted the writ to docket. Concluding that the trial court erred in denying the motion for summary judgment, we reverse the judgment.

FACTS

On April 10, 2015, Ebarb was a customer at Scot’s Audio & Trim when he was allegedly struck by Joseph Dyer, an employee of Scot’s. Colony had issued a Commercial Auto Liability Policy to D. Scot Boswell d/b/a Scot’s Audio & Trim (“Boswell”). The policy period was from May 29, 2014, to May 29,2015.

On February 29, 2016, Ebarb filed suit against Boswell, Colony Insurance Company, and Joseph Dyer. Ebarb alleged that:

[525]*525• On or about April 10, 2015, Dyer approached Ebarb as he was on the premises of Scot’s Audio and Trim having services performed on his automobile.
• Without warning or provocation, Dyer assaulted and battered Ebarb, causing his injuries.
• Dyer was charged with criminal offenses for his physical attack on Ebarb.
• Dyer subsequently pled guilty to simple battery.
• Dyer committed a battery upon Ebarb in contravention of Dyer’s duty and obligation under the law to not harm another and as a result of his unjustified attack upon Ebarb, proximately caused the personal injuries suffered by Ebarb.

Regarding Boswell’s liability, Ebarb alleged:

The negligence, errors, omissions, and acts of Defendant, D. SCOT BOSWELL, D/B/A SCOT’S AUDIO AND TRIM, were a cause in fact of injuries sustained by Plaintiff in that | ^Defendant D. SCOT BOSWELL, D/B/A SCOT’S AUDION AND TRIM:
A. Failed to properly supervise employees;
B. Failed to do proper vetting of employees;
C. Failed to prevent the assault and battery; and
D. Other improper/negligent acts as may be proven at trial.

Boswell filed an answer on April 4,2016, raising the affirmative defense that Ebarb instigated the fight by taunting Dyer, and was therefore responsible for his own injuries.

Colony filed its answer on April 25, 2016. Three months later, Colony filed a motion for summary judgment in which it argued that it did not provide insurance coverage to Boswell, Dyer, or any other party for the claims asserted by Ebarb as those claims were specifically excluded from coverage under the policy it had issued to Boswell.

Boswell filed an opposition to the motion for summary judgment in which he disputed that coverage was not provided under the policy. He contended that liability coverage was provided in Section II of the policy, Coverage A, entitled, “Garage Operations—Other Than Covered Autos.” Boswell attached the police report from the incident to his opposition.

Boswell also filed a cross-claim against Colony in which he alleged that pursuant to a Louisiana Endorsement to “Garage Operations—Other Than Covered Autos,” Colony was obligated to defend Boswell until the suit was resolved, pay for the reasonable attorney fees incurred by Boswell until Colony assumed his defense, and indemnify Boswell for Ebarb’s claims and demands.

A hearing on the motion for summary judgment was held on October 17, 2016. In denying the motion for summary judgment, the trial court noted that Colony failed to produce any evidence showing that the cause of faction giving rise to the lawsuit was excluded from coverage under its policy. The court added that there was no admissible evidence demonstrating that a battery actually occurred, as the police report was inadmissible hearsay. The court also found that there was a dispute as to whether Dyer was an employee of Scot’s at the time of the incident. Thus, because it determined that there were disputes as to material facts, the trial court concluded that summary judgment should be denied until further discovery was completed.

Colony applied for a supervisory writ, which this court granted to docket.

[526]*526DISCUSSION

A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, ie., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880.

In Bilyeu v. National Union Fire Ins. Co. of Pittsburgh, PA, 50,049 (La. App. 2 Cir. 9/30/15), 184 So.3d 69, writ denied, 2015-2277 (La. 2/19/16), 187 So.3d 462, this court outlined the general principles concerning the interpretation of insurance policies on a motion for summary judgment:

The interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved on motion for summary judgment. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set out in the Civil Code. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search |4of the parties’ intent. Only if the policy cannot be construed simply, based on its language, because of an ambiguity, will the court look to extrinsic evidence to determine the parties’ intent. Just because a policy provides general coverage but then subjects it to certain exclusions does not make the policy ambiguous.

Citations omitted. Id. at p. 8, 184 So.3d at 74.

A battery is a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact. Caudle v. Betts, 512 So.2d 389 (La. 1987). The intention need not be malicious nor need it be an intention to inflict actual damage; it is sufficient if the actor intends to inflict either a harmful or offensive contact without the other’s consent. Id.

The Colony policy at issue contained an endorsement which provided, in part:

CHANGES IN THE GARAGE COVERAGE FORM
This endorsement modifies insurance provided under the following:
GARAGE COVERAGE FORM
CHANGES IN SECTION II—LIABILITY COVERAGE
Part B. Exclusions is changed as follows. Paragraphs 18 through 21 are added.
[[Image here]]
19. Assault, Battery, or Assault and Battery
“Bodily injury”, “property damage” or “personal and advertising injury” arising out of:
a. “Assault”, “Battery” or “Assault and Battery” caused, directly or indirectly, by you, any “insured”, any person, any entity or by any means whatsoever;
b. the failure to suppress or prevent “Assault”, “Battery” or “Assault and Battery” by you, any “insured”, any person, any entity, or by any means whatsoever;
c.

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Cite This Page — Counsel Stack

Bluebook (online)
224 So. 3d 523, 2017 WL 3045501, 2017 La. App. LEXIS 1329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ebarb-v-boswell-lactapp-2017.