Graham Resources v. Lexington Ins.

625 So. 2d 716, 1993 La. App. LEXIS 3261, 1993 WL 429030
CourtLouisiana Court of Appeal
DecidedOctober 15, 1993
DocketCA 92 1730
StatusPublished
Cited by18 cases

This text of 625 So. 2d 716 (Graham Resources v. Lexington Ins.) 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
Graham Resources v. Lexington Ins., 625 So. 2d 716, 1993 La. App. LEXIS 3261, 1993 WL 429030 (La. Ct. App. 1993).

Opinion

625 So.2d 716 (1993)

GRAHAM RESOURCES, INC., et al.
v.
LEXINGTON INSURANCE CO., et al.

No. CA 92 1730.

Court of Appeal of Louisiana, First Circuit.

October 15, 1993.

*717 Phillip A. Wittmann, Stephen H. Kupperman, Judy Y. Barrasso and John W. Borkowski, New Orleans, for plaintiffs-appellants.

Vincent P. Fornias, Baton Rouge, for defendants-appellees.

D. Russell Holwadel, Jesse R. Adams, Jr., New Orleans, for Americans.

Patrick Juneau, Lafayette, for Lexington.

Before CARTER, GONZALES and WHIPPLE, JJ.

GONZALES, Judge.

This matter comes before us on a review of a summary judgment granted by the trial court. As the Louisiana Supreme Court has said with regard to the standard of review in Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991):

Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of *718 whether summary judgment is appropriate. GATX Aircraft Corp. v. M/V Courtney Leigh, 768 F.2d 711, 714 (5th Cir. 1985); McCrae v. Hankins, 720 F.2d 863, 865 (5th Cir.1983); Wright, Miller & Kane, Federal Practice and Procedure, § 2716, at 125 (Supp.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Vermilion Corp. v. Vaughn, 397 So.2d 490, 493 (La.1981). Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Vermilion Corp., supra; see also United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Thornbrough v. Columbus and Greenville R. Co., 760 F.2d 633, 640 (5th Cir.1985). The party who defended against the motion for summary judgment must have his properly filed allegations taken as true and must receive the benefit of the doubt when his assertions conflict with those of the movant. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Thornbrough, supra; Wright, Miller & Kane, supra.

FACTS

The facts of the underlying actions can be summarized as follows. Several Graham entities with headquarters in Covington, Louisiana were involved in marketing investments in oil and gas partnerships or funds in the 1980's. Today these entities are in the business of managing oil and gas properties. Graham marketed and managed two different forms of investments on a nationwide basis which were known as Growth Funds and Income Funds. Each of the defendant insurance companies had issued insurance to Graham in the form of comprehensive general liability policies during the period in question between November 1983 and August 1989. Each of the policies provided coverage for advertising injuries which included claims of unfair competition.

The underlying actions, from which this issue of a duty to defend arises, were brought by consumers claiming Graham had engaged in various federal and state law violations, including claims of unfair competition, false advertising, negligent misrepresentation, mismanagement, deceptive trade practices, and securities fraud. The gravamen of the complaints is that Graham made material misrepresentations and misleading statements in its advertising materials. In granting defendant insurance companies' motions for summary judgment the trial court looked to the term "unfair competition" in the policy, and the context in which it was used, rather than relying on the statutory language of the Louisiana Unfair Trade Practices And Consumer Protection Law, La. R.S. 51:1401 et seq. and its various interpretations.

In its appeal of the granting of the motion for summary judgment, Graham Resources makes the following assignments of error:

1.) The trial court erred in failing to recognize that an insurer which repeatedly and unequivocally admits that it has an unqualified duty to defend is bound by that admission and has waived its right to contest its defense obligation.

2.) The court below erred in concluding that the narrow and restrictive common law definition of unfair competition should be applied to an undefined ambiguous term to restrict the coverage provided under Louisiana law by comprehensive general liability policies.

3.) The trial court erred in failing to find a duty to defend where a possibility of coverage exists.

ASSIGNMENT OF ERROR NO. 1

Graham argues that Hartford "made numerous unequivocal and unqualified admissions of its obligation to defend Graham in the underlying actions. Hartford is bound by these admissions and waived any right to contest its defense obligations." Graham also states: "Courts have long recognized that an insurer's unqualified admissions of *719 coverage or a defense obligation are binding and result in a waiver of any right to subsequently contest the obligation." Graham cites as support for this argument Tate v. Charles Aguillard Insurance & Real Estate, Inc., 508 So.2d 1371 (La.1987). Although the Tate court does state "Waiver may apply to any provision of an insurance contract under which the insurer knowingly and voluntarily elects to relinquish his right, power or privilege to avoid liability, even though the effect may bring within coverage risks originally excluded or not covered," the statement must be read within the context of the case. Tate, 508 So.2d at 1375. A reading of Tate reveals that the issue in the case was whether an insurer of an animal under a livestock mortality policy may tacitly waive a condition precedent that the animal must be in sound health at the inception of the policy. In Tate, the court merely found that the insurer could waive a condition precedent to the inception of the policy by its actions. However, the Tate court found that the plaintiff did not meet the burden of proof to show that the insurer did indeed waive the condition precedent to the policy. Graham also cites Swain v. Life Insurance Company Of Louisiana, 537 So.2d 1297 (La.App. 2d Cir. 1989), writ denied, 541 So.2d 895 (La.1989). In Swain, the court found that an insurer could not deny coverage on the basis of a "sound health" provision when its agent had reason to suspect that the insured's health was dubious, yet accepted the premiums and issued the policy without requiring the insured to read and fill out the application form and without initiating further inquiry or investigation into the insured's condition. 537 So.2d at 1301. In Swain, as in Tate, the issue was the waiver of a condition precedent to the policy being issued, not a waiver to extend coverage to areas not contemplated by the policy. This case does not lend support to Graham's position.

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Bluebook (online)
625 So. 2d 716, 1993 La. App. LEXIS 3261, 1993 WL 429030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-resources-v-lexington-ins-lactapp-1993.