Emery v. Progressive Casualty Insurance Co.

49 So. 3d 17, 2010 La.App. 1 Cir. 0327, 2010 La. App. LEXIS 1212, 2010 WL 3517943
CourtLouisiana Court of Appeal
DecidedSeptember 10, 2010
Docket2010 CA 0327
StatusPublished
Cited by5 cases

This text of 49 So. 3d 17 (Emery v. Progressive Casualty Insurance 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
Emery v. Progressive Casualty Insurance Co., 49 So. 3d 17, 2010 La.App. 1 Cir. 0327, 2010 La. App. LEXIS 1212, 2010 WL 3517943 (La. Ct. App. 2010).

Opinions

PARRO, J.

^Defendant, Progressive Security Insurance Company (Progressive),1 appeals the judgment of the trial court granting a partial motion for summary judgment in favor of another defendant, T & T Seafood, Inc. (T & T), finding that Progressive had waived its coverage defenses in this matter. For the reasons that follow, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, Vanessa Emery and Nedra Wrights, were involved in an automobile accident in which the vehicle they were occupying was rear-ended by a vehicle driven by Joshua Tourere (Joshua) on April 25, 2006. According to the plaintiffs’ petition, the impact from the collision forced the plaintiffs’ vehicle off the road, where the vehicle then struck a sign and two parked cars.

When the accident occurred, Joshua was allegedly in the course and scope of his employment with T & T, thus making T & T allegedly vicariously liable for the accident and the resulting damages. At the time of the accident, Progressive provided automobile liability coverage to T & T for various vehicles listed on the declarations page of the policy; however, Joshua was not driving any of these listed vehicles when the accident occurred. Instead, Joshua was driving his personal vehicle, which Progressive alleges was not covered by the policy it issued to T & T, as it was not one of the listed vehicles covered by the policy, nor was it a replacement or substitute vehicle.

Progressive contends that it was notified of the accident on November 13, 2006, and that eleven days later, on November 24, 2006, it sent T & T a reservation of rights letter, citing the parts of the policy defining what was considered an insured auto and advising T & T that it was conducting an investigation into the issue of coverage. In the letter, Progressive advised T & T that no action it might take to investigate, explore |,^settlement, or defend a lawsuit arising out of the accident should be deemed to be an admission of coverage under the policy. The letter further stated that it would notify T & T when its coverage investigation was complete. However, on the same date, Progressive sent another letter to T & T advising T & T that it had completed its investigation [19]*19into the accident and that it had concluded that there was “no coverage available for this loss.” At no point in this letter did Progressive advise T & T that there was a conflict of interest or that T & T should consult a separate attorney with regard to the issue of coverage.

Despite having sent these letters to T & T, Progressive subsequently appointed a single attorney to defend both Progressive and T & T when the plaintiffs filed their lawsuit against them on February 21, 2007.2 One month later, this attorney filed an answer on behalf of both T & T and Progressive that contained various defenses, including an affirmative defense asserting that there was no coverage under the policy.3 Although Progressive had now denied coverage to T & T by letter and in an official pleading, Progressive continued to use a single attorney to represent both itself and its insured in this matter. On August 12, 2008, while still representing both Progressive and T & T, this attorney deposed Joshua and specifically inquired about facts concerning coverage.4 Only after taking this deposition did Progressive appoint separate counsel for T & T. Therefore, on August 22, 2008, almost twenty-one months after Progressive had first denied coverage by letter to T & T, and more than seventeen months after the original attorney had filed an answer asserting the affirmative defense that there was no coverage, Progressive provided a separate attorney solely to represent the interests |4of T & T. It was that attorney who then advised T & T in a letter of the conflict of interest. The new attorney further advised T <& T that he would not be representing T & T on the coverage issue and that T & T might wish to retain another attorney on that issue.5

In January 2009, after this separate attorney had been appointed, the attorney representing only Progressive went to the home of John Tourere (Mr. Tourere), the owner and president of T & T, to get him to sign an affidavit concerning the ownership of various motor vehicles, which was a key fact in the coverage dispute. It is undisputed that T & T’s attorney was not there with him when he signed the affidavit, and according to T & T’s briefs and argument both at the trial court level and the appellate level, T & T’s attorney was not notified that Progressive’s attorney intended to obtain this affidavit from Mr. Tourere. Indeed, T & T’s attorney con[20]*20tends that both attorneys for T & T only found out about the affidavit when it was attached to Progressive’s motion for summary judgment. Moreover, Mr. Tourere stated in a later affidavit that he was not aware that the attorney who came to get his signature on the affidavit concerning vehicle ownership was representing only Progressive in this matter.

After obtaining this affidavit, Progressive filed a motion for summary judgment contending that there was no coverage under the policy. T & T responded by filing a motion for partial summary judgment arguing that Progressive had waived its coverage defenses. After a hearing, the trial court granted T & T’s motion for . partial summary judgment and denied Progressive’s motion for summary judgment. The trial court further designated the judgment as final and appealable after finding no just reason for delay.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Insurance Co., 06-363 (La.11/29/06), 950 So.2d 544, 546; see LSA-C.C.P. art. 966. An appellate court’s review of a summary judgment is a de novo review based on the evidence presented to the trial court, using the same criteria used by the trial court in deciding whether a summary judgment should be granted. Buck’s Run Enterprises, Inc. v. Mapp Const., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. A motion for summary judgment should be granted only if all the pleadings, depositions, answers to interrogatories, admissions, and any affidavits submitted to the trial court show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). If the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing that there is no genuine issue of material fact is on the party bringing the motion. See LSA-C.C.P. art. 966(C)(2).

DISCUSSION

Generally, in the terms of its liability policy, an insurer contractually agrees to provide its insured a legal defense for liability claims against the insured. Problems arise, however, when the insurer concludes that its policy does not provide coverage for the particular claim made against its insured. The insurer is faced with a dilemma between its duty to defend and its right to contest coverage with its insured. Dugas Pest Control of Baton Rouge, Inc. v. Mutual Fire, Marine and Inland Ins. Co., 504 So.2d 1051, 1053 (La.App. 1st Cir.1987).

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Emery v. Progressive Casualty Insurance Co.
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Bluebook (online)
49 So. 3d 17, 2010 La.App. 1 Cir. 0327, 2010 La. App. LEXIS 1212, 2010 WL 3517943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emery-v-progressive-casualty-insurance-co-lactapp-2010.