Ellis v. Transcontinental Ins. Co.

619 So. 2d 1130, 1993 WL 178488
CourtLouisiana Court of Appeal
DecidedMay 27, 1993
Docket92-CA-2719
StatusPublished
Cited by10 cases

This text of 619 So. 2d 1130 (Ellis v. Transcontinental Ins. 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
Ellis v. Transcontinental Ins. Co., 619 So. 2d 1130, 1993 WL 178488 (La. Ct. App. 1993).

Opinion

619 So.2d 1130 (1993)

Zachary Lee ELLIS, and The Ellis Company, Inc.
v.
TRANSCONTINENTAL INSURANCE COMPANY and Valley Forge Insurance Company.

No. 92-CA-2719.

Court of Appeal of Louisiana, Fourth Circuit.

May 27, 1993.

*1131 J. Michael Johnson, Larry G. Canada, Galloway, Johnson, Tompkins & Burr, New Orleans, for appellants.

Ralph J. Zatzkis, Jeffrey A. Schwartz, McGlinchey Stafford Lang, New Orleans, for appellees.

Before CIACCIO, LOBRANO and LANDRIEU, JJ.

CIACCIO, Judge.

This declaratory judgment action was brought by Zachary Lee Ellis and The Ellis Company (Ellis) against Transcontinental *1132 Insurance Company and Valley Forge Insurance Company because of the insurers' failure to defend Ellis in a suit brought against them, and for denial of coverage under two policies of insurance issued by defendants. Both Ellis and the insurers moved for summary judgment, and the insurers lodged this devolutive appeal after partial summary judgment was granted in favor of Ellis and the insurers' motion for summary judgment was denied. For the reasons set forth herein, we affirm the judgment of the trial court and remand the case for further proceedings.

Facts

Plaintiff herein, Zachary Ellis, is the president and chief executive officer of a roofing company known as The Ellis Company, Inc. Defendant, Transcontinental Insurance Company issued to The Ellis Company a policy of comprehensive general liability insurance under which Zachary Ellis is also an insured. Valley Forge Insurance Company, also a defendant herein, issued to the Ellis Company policies of commercial catastrophe umbrella third-party liability insurance and worker's compensation and employer's liability insurance under which Zachary Ellis is also an insured.

On November 13, 1990, Gladys Marigny, a former employee of The Ellis Company, filed a petition for damages in state court against Zachary Ellis, The Ellis Company and their unnamed insurers. Also named as a defendant was Laboratory Specialists, Inc.

Ms. Marigny alleged in her petition that on July 25, 1989, Zachary Ellis withheld four hours of wages from her pay, and that she subsequently made a complaint to the Wage and Hour Division of the U.S. Department of Labor. According to the facts set forth in the petition, Ellis then paid Ms. Marigny the disputed wages, and subsequently demoted her to a journeyman position and cut her weekly hours, resulting in a severe cut in pay. Ms. Marigny further alleged that on October 6, 1989, Zachary Ellis demanded that Ms. Marigny submit a urine sample for drug analysis, and that the sample tested positive for marijuana. Ms. Marigny alleged that on November 13, 1989 Zachary Ellis terminated her employment with The Ellis Company.

The petition further alleged:
19.
The action of defendant ZACHARY LEE ELLIS in singling out petitioner GLADYS M. MARIGNY to submit to a drug test without prior written company procedures for drug testing and without cause was malicious and unreasonable and seriously interfered with petitioner's privacy interest.
20.
The actions of defendant ZACHARY LEE ELLIS in retaliating against GLADYS M. MARIGNY, who sought the intervention of the Wage and Hour Division of the U.S. Department of Labor to collect wages due to her and her crew, by demoting her, reducing her hours and singling her out for drug testing was exclusively for the purpose of causing her harm by severely limiting her wages and by causing her embarrassment and emotional distress, all of which was an abuse of the employer's right.
21.
The actions of defendant ZACHARY LEE ELLIS in seeking retribution against GLADYS M. MARIGNY for her lawful right to register a complaint with the Wage and Hour Division of the U.S. Department of Labor and to seek their assistance in collecting wages owed to her constitutes outrageous conduct actively designed to cause her mental anguish. Further, defendant, ZACHARY LEE ELLIS's, unfair application of THE ELLIS COMPANY INC.'s unwritten drug policy was done with such rancor that petitioner's mental anguish was certain to occur.
22.
The actions of defendants, ZACHARY LEE ELLIS, THE ELLIS COMPANY, INC. AND LABORATORY SPECIALISTS INC. in their negligent failure to *1133 comply with state and federal guidelines established for drug collecting and testing and in their negligent report of positive drug use excluding passive inhalation caused petitioner severe mental anguish, humiliation and embarrassment, and ultimately the loss of her employment.
23.
The actions of defendants, ZACHARY LEE ELLIS and THE ELLIS COMPANY, INC. in seeking retaliation and retribution and ultimately discharge of petitioner for reporting a labor violation to the Wage and Hour Division of the U.S. Department of Labor is in violation of the Fair Labor Standards Act, Title 29, United States Code, Section 215(a)(3).
24.
As a result of defendants actions, petitioner has suffered emotional distress, embarrassment and humiliation and loss of employment, all in amounts to be determined by the trier of fact.

This suit was subsequently removed to federal district court. Zachary Ellis made written demand on The Ellis Company's insurers, Transcontinental Insurance Company and Valley Forge Insurance Company, for a defense and indemnification. The insurers refused Ellis' demands, maintaining that the policies did not provide coverage for the claims brought against Ellis. Ellis subsequently brought a motion to dismiss and/or for partial summary judgment in the federal court suit. The federal district court granted Ellis' motion for partial summary judgment dismissing Ms. Marigny's claims against her employer for negligence, loss of employment and for interference with her privacy interest. Ms. Marigny's additional claims against Ellis were referred to trial on the merits. Prior to trial, Ellis settled Marigny's claims for the sum of $40,000.00. Ellis made further demand for indemnification and reimbursement of attorney's fees and costs on the insurers to no avail.

On September 3, 1991, plaintiffs, Ellis and The Ellis Company filed this petition for declaratory judgment seeking that the court order defendants-insurers to provide a defense and indemnification to Ellis in the suit "Gladys Marigny v. Zachary Lee Ellis." Plaintiffs alleged that the policies of insurance issued by defendants provided coverage to Ellis for the claims raised in Ms. Marigny's petition, and plaintiffs are therefore entitled to a defense in that litigation. Plaintiffs subsequently filed an amended petition that the Marigny lawsuit had been settled, and plaintiffs asserted that they were entitled to indemnification of the settlement amount in addition to reimbursement for costs, expenses and legal fees expended in defending that lawsuit. Defendants answered this petition, admitting that it issued the policies of insurance, but denying all of Ellis' other allegations.

Plaintiffs and defendants subsequently brought cross motions for summary judgment alleging that they were entitled to judgment as a matter of law. After considering the pleadings and memoranda, the trial court partially granted plaintiffs' motion for summary judgment concluding that plaintiffs were entitled to coverage and a defense based on the terms of defendants' insurance policies.

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Cite This Page — Counsel Stack

Bluebook (online)
619 So. 2d 1130, 1993 WL 178488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-transcontinental-ins-co-lactapp-1993.