Gray Ins. Co. v. Old Tyme Builders, Inc.

878 So. 2d 603, 2003 La.App. 1 Cir. 1136, 2004 La. App. LEXIS 763, 2004 WL 691393
CourtLouisiana Court of Appeal
DecidedApril 2, 2004
Docket2003 CA 1136
StatusPublished
Cited by5 cases

This text of 878 So. 2d 603 (Gray Ins. Co. v. Old Tyme Builders, Inc.) 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
Gray Ins. Co. v. Old Tyme Builders, Inc., 878 So. 2d 603, 2003 La.App. 1 Cir. 1136, 2004 La. App. LEXIS 763, 2004 WL 691393 (La. Ct. App. 2004).

Opinion

878 So.2d 603 (2004)

The GRAY INSURANCE COMPANY
v.
OLD TYME BUILDERS, INC. and Zurich Insurance Companies

No. 2003 CA 1136.

Court of Appeal of Louisiana, First Circuit.

April 2, 2004.
Writ Denied June 18, 2004.

*604 Robert L. Baudouin, Metairie, Counsel for Plaintiff/Appellant The Gray Insurance Company.

Andrew A. Braun, Michelle L. Corrigan, New Orleans, Counsel for Defendants/Appellees Old Tyme Builders, Inc.

Terrence L. Brennan, Keith J. Bergeron, New Orleans, Counsel for Third-Party Defendant/Appellee Morton Verges Architects.

Temple A. Stephens, Metairie, Counsel for Defendant/Appellee Assurance Company of America.

Before: PETTIGREW, DOWNING, and McCLENDON, JJ.

MCCLENDON, J.

In this construction case, the issue raised on appeal is whether a general contractor's liability insurer is prohibited from seeking reimbursement from the general contractor's subcontractor for damages paid due to the subcontractor's alleged faulty workmanship and/or negligence. The trial court found that the existence of a waiver of subrogation clause in the contract between the general contractor and the building owner acts to preclude recovery *605 and granted summary judgment, dismissing the plaintiff's suit. For the following reasons, we affirm.

On August 31, 1995, Discon Law Firm entered into a written contract with Morton Verges Architects for the construction of a new office building in Mandeville, Louisiana. On February 28, 1996, Discon Law Firm and Grimaldi Construction, Inc. (GCI) entered into a construction contract for the actual construction of the building. Subsequently, GCI entered into a subcontract with Old Tyme Builders, Inc. for the installation of the stucco finish on the building.

GCI issued a certificate of substantial completion on or around June 24, 1996, a few weeks after Discon Law Firm began moving into the building. The building was fully occupied at or immediately after substantial completion. Prior to the issuance of the certificate of completion and throughout the fall of 1996, the building and its contents allegedly sustained water damage during normal rainfalls. During this period, GCI was insured by a liability policy issued by Gray Insurance Company.

Jim Willie, superintendent for Old Tyme Builders admitted to August Grimaldi, president of GCI, that some work performed by Old Tyme Builders on the Discon building was defective in that the metal lathe system was improperly installed. This improper installation caused water infiltration into the interior of the building and damaged various components of the interior, including walls and carpets. Old Tyme Builders replaced the stucco at its expense. GCI initially bore the expense of the consequential damages that resulted from the water leaks, such as carpet cleaning and the replacement of walls. Subsequently, Gray Insurance Company reimbursed GCI for the damages caused by the defective work.

On August 31, 1999, Gray Insurance Company, as subrogee to the rights of its insured, GCI, filed a petition for damages against Old Tyme Builders and its insurer, Assurance Company of America,[1] seeking reimbursement for the payments made to GCI. Old Tyme Builders filed a third party demand against Morton Verges Architects.

Old Tyme Builders and Assurance Company of America also filed motions for summary judgment, contending that a waiver of subrogation clause in the contract between GCI and Discon Law Firm precluded recovery by Gray Insurance Company. Morton Verges Architects also filed a motion for summary judgment. After a hearing on the motions, the trial court rendered summary judgment against Gray Insurance Company, dismissing its lawsuit with prejudice. Gray Insurance Company appeals.

It is well settled that the appellate review of summary judgment is de novo, applying the same standard as the trial court. Guillory v. Interstate Gas Station, 94-1767, p. 5 (La.3/30/95), 653 So.2d 1152, 1155. Furthermore, the rules concerning the interpretation of insurance contracts are set forth by the Louisiana Supreme Court in the case of Crabtree v. State Farm Insurance Co., 93-0509 (La.2/28/94), 632 So.2d 736, 741 (footnotes omitted), as follows:

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Casualty Co., 93-0911 p. 5 (La.1/14/94), 630 So.2d 759, 763; Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993); Schroeder v. Board of *606 Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991). If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent and the agreement must be enforced as written. Smith, 611 So.2d at 1379; Central La. Elec. Co. v. Westinghouse Elec. Corp., 579 So.2d 981, 985 (La.1991); Pareti v. Sentry Indem. Co., 536 So.2d 417, 420 (La.1988); see La.Civ.Code art.2046. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Interstate, 93-0911 p. 5, 630 So.2d at 763; Fertitta v. Palmer, 252 La. 336, 211 So.2d 282, 285 (1968). The policy should be construed as a whole and one portion thereof should not be construed separately at the expense of disregarding another. Westinghouse, 579 So.2d at 985; Pareti, 536 So.2d [at] 420; see La.Civ.Code art.2050. If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of the insured. Interstate, 93-0911 p. 6, 630 So.2d at 764; Smith, 611 So.2d at 1379; Pareti, 536 So.2d at 420; see La.Civ.Code art.2056.

The construction contract entered into between Discon Law Firm and GCI is a standard form contract drafted by the American Institute of Architects. The entire contract is entitled "Standard Form of Agreement Between Owner and Contractor." The pertinent provisions of the contract entered into between Discon Law Firm and GCI are as follows:

11.3 Property Insurance

11.3.1 Unless otherwise provided, the owner shall purchase and maintain... property insurance in the amount of the initial Contract Sum ... for the entire Work at the site on a replacement cost basis without voluntary deductibles. Such property insurance shall be maintained ... until final payment has been made as provided in Paragraph 9.10 or until no person or entity other than the Owner has an insurable interest in the property required by this Paragraph 11.3 to be covered, whichever is earlier. This insurance shall include interests of the owner, the Contractor, Subcontractors and Sub-subcontractors....

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878 So. 2d 603, 2003 La.App. 1 Cir. 1136, 2004 La. App. LEXIS 763, 2004 WL 691393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-ins-co-v-old-tyme-builders-inc-lactapp-2004.