Goldman v. Doe

113 So. 3d 376, 12 La.App. 5 Cir. 531, 2013 WL 1287373, 2013 La. App. LEXIS 600
CourtLouisiana Court of Appeal
DecidedMarch 27, 2013
DocketNo. 12-CA-531
StatusPublished
Cited by3 cases

This text of 113 So. 3d 376 (Goldman v. Doe) 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
Goldman v. Doe, 113 So. 3d 376, 12 La.App. 5 Cir. 531, 2013 WL 1287373, 2013 La. App. LEXIS 600 (La. Ct. App. 2013).

Opinion

ROBERT M. MURPHY, Judge.

|2The plaintiff/appellant, Michael Goldman, appeals the trial court’s judgment granting the intervenor Founders Insurance Company’s motion for summary judgment, which held that the Founders insurance policy at issue does not provide coverage to any defendant named in appellant’s lawsuit and that Founders Insurance Company has no obligation to provide a defense to any defendant named in appellant’s lawsuit. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On July 30, 2010, the plaintiff/appellant, Michael Goldman, filed a petition for damages against defendants, John Doe 1, John Doe 2, Darrell Dumestre and GAD Entertainment, LLC d/b/a Club Eden (“Club Eden”) arising out of an alleged attack that occurred on July 30, 2009 at Club Eden, a business establishment located at 3229 Lisa Drive, Metairie, Louisiana. In his petition, Mr. Goldman alleged that he sustained bodily injuries after he was suddenly and without warning, “viciously attacked” by the defendants, John Doe 1 and John Doe 2, |3while attempting to leave [379]*379Club Eden. Mr. Goldman further alleged that John Doe 1 and John Doe 2 were employees of defendants, Darrell Dumes-tre and Club Eden, and that they were acting within the course and scope of their employment at the time of the incident.

During Mr. Goldman’s deposition, he testified as to the details of the incident at issue. He claimed that as he was attempting to leave Club Eden, one of the bouncers stopped him and told him that he had an outstanding bar tab. Mr. Goldman then informed the bouncer that he had already closed out his tab and proceeded to exit through the front door. However, Mr. Goldman claimed that the front door was locked. As he turned around, Mr. Goldman testified that two bouncers approached him and that one of the bouncers struck him, causing him to pass out.

On December 7, 2010, the intervenor/ap-pellee Founders Insurance Company (“Founders”), filed a petition of intervention alleging that Founders issued a policy of general liability insurance to Club Eden (providing both CGL coverage and liquor liability coverage), bearing Policy No. CPLA000095, effective October 18, 2008 to October 18, 2009 (hereinafter, the “Founders policy”). Founders alleged that although the Founders policy at issue was in effect at the time of the incident set forth in Mr. Goldman’s petition, the incident was not covered due to the assault and battery exclusions provided in both the CGL coverage and the liquor liability coverage of the Founders policy.

Subsequently, Founders filed a motion for summary judgment. In its motion for summary judgment, Founders sought a ruling that pursuant to the assault and battery exclusion of the Founders policy, (1) the Founders policy at issue does not provide coverage to any defendant herein for any liabilities or damages asserted by Mr. Goldman, and (2) that Founders has no obligation, under the Founders policy |4or law, to provide a defense to any defendant for any liabilities or damages asserted by Mr. Goldman. In support of its motion, Founders attached' an affidavit of a USG Insurance Services representative, Blanche Myers, certifying that the attached insurance policy is a true and correct certified copy of the Founders policy in effect on the date of the incident; a copy of Mr. Goldman’s petition; and excerpts of Mr. Goldman’s deposition transcript detailing his account of the alleged attack.

In his memorandum opposing Founders’ motion for summary judgment, Mr. Goldman alleged that Founders is not entitled to summary judgment because genuine issues of material fact exist as to whether an assault and battery occurred. In addition, Mr. Goldman alleged that certain language of the assault and battery exclusion was vague and ambiguous.

On October 12, 2011, Founders’ motion for summary judgment came before the trial court for hearing, and the court granted Founders’ motion.- On November 9, 2011, the trial court entered a judgment granting Founders’ motion for summary judgment, finding “that the Founders insurance policy at issue does not provide coverage to any defendant herein for any liabilities or damage asserted by Plaintiff in this lawsuit and that Founders Insurance Company has no obligation, under the subject policy or law, to provide a defense to any defendant herein for any liabilities or damages asserted by Plaintiff in this lawsuit.”

Mr. Goldman, sought and was granted a devolutive appeal on December 12, 2011.

STANDARD OF REVIEW

Louisiana Code of Civil Procedure Article 966 provides that a motion for sum[380]*380mary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled |fito summary judgment as a matter of law.” Hin-chen v. Louie Dabdoub Sell Cars, Inc., OS-218 (La.App. 5 Cir. 10/6/05); 912 So.2d 715, 717, writ denied, 05-2356 (La.3/17/06); 925 So.2d 544 (citing La. C.C.P. art. 966(B)). It is well settled that appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Garrison v. Tanenbaum, 02-1181 (La.App. 5 Cir. 4/8/03); 846 So.2d 40, 42; (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94); 639 So.2d 730, 750). Therefore, this court must consider whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Id.

The burden of proof remains with the movant. In considering a motion for summary judgment, the court shall render judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Rudolph v. D.R.D. Towing Co., LLC, 10-629 (La.App. 5 Cir. 1/11/11), 59 So.3d 1274, 1277 (citing La. C.C.P. art. 966). Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Garrison, 846 So.2d at 43.

DISCUSSION

Insurance Coverage

A dispute as to the issue of whether, as a matter of law, the language of an insurance policy provides coverage to a party, can properly be resolved within the context of a motion for summary judgment. Domingue v. Reliance Ins. Co., 619 So.2d 1220, 1223 (La.App. 3 Cir.1993). An insurer seeking to avoid coverage through summary judgment bears the burden of proving the applicability of an |fiexclusion within a policy. Doerr v. Mobil Oil Corp., 00-0947 (La.12/19/00); 774 So.2d 119, 124, modified on other grounds on reh’g, 00-0947 (La.3/16/01); 782 So.2d 573. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Beck v. Burgueno, 43,557 (La.App. 2 Cir. 9/17/08); 996 So.2d 404, 409.

Insurance Policy Interpretation

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Mattingly v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
113 So. 3d 376, 12 La.App. 5 Cir. 531, 2013 WL 1287373, 2013 La. App. LEXIS 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldman-v-doe-lactapp-2013.