Henly v. Phillips Abita Lumber Co.

971 So. 2d 1104, 2006 La.App. 1 Cir. 1856, 2007 La. App. LEXIS 1795, 2007 WL 2850525
CourtLouisiana Court of Appeal
DecidedOctober 3, 2007
Docket2006 CA 1856
StatusPublished
Cited by27 cases

This text of 971 So. 2d 1104 (Henly v. Phillips Abita Lumber 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
Henly v. Phillips Abita Lumber Co., 971 So. 2d 1104, 2006 La.App. 1 Cir. 1856, 2007 La. App. LEXIS 1795, 2007 WL 2850525 (La. Ct. App. 2007).

Opinion

971 So.2d 1104 (2007)

Jamie HENLY
v.
PHILLIPS ABITA LUMBER CO., Inc., et al.

No. 2006 CA 1856.

Court of Appeal of Louisiana, First Circuit.

October 3, 2007.

*1106 Thomas Kelffer, Sr., Covington, LA, and Phillip M. Lynch, Jr., Mandeville, LA, for Defendant & Third-Party Plaintiff/Appellant Phillips Abita Lumber Co., Inc.

Ralph S. Hubbard, III, Lourdes Estevez Martinez, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Defendant & Third-Party Defendant/Appellee Travelers Property Casualty Co. of America.

Before PARRO, GUIDRY, and McCLENDON, JJ.

PARRO, J.

Phillips Abita Lumber Company, Inc. (Abita) appeals a judgment denying its motion for partial summary judgment and granting summary judgment in favor of Travelers Property Casualty Company of America (Travelers). The judgment in favor of Travelers dismissed Abita's claims that Travelers owed it insurance coverage and a defense for the acts alleged in the petition of Jamie Henly (Henly) against Jeffrey Bruce (Bruce) and his employer, Abita. We affirm the judgment.

BACKGROUND

According to Henly's petition against Bruce and Abita in this matter, she and Bruce were both employed by Abita. Bruce had recruited Henly for her position as a shipping clerk and was her immediate supervisor. Henly claims that on one occasion when she was riding to work with Bruce, he pulled off the main road, exposed himself to her, and solicited her for *1107 sexual activity.[1] She further alleges that Bruce, a management employee, continually bothered her while both were at work at the Abita site by improper touching, solicitations, and sexual comments. When she rebuffed his unwelcome advances, he threatened her with the loss of her job, hollered at her, threw chairs, and on one occasion, pushed or kicked her in the back, forcing her forward into a wall and causing a lower back injury that eventually required surgery.[2]

Henly claims many of these actions were witnessed by other employees of Abita and constituted assault and battery, sexual harassment, unlawful violence against women, and intentional infliction of emotional distress. She further alleges that Abita is vicariously liable for Bruce's acts, because he was in the course and scope of his employment when these incidents occurred. Therefore, she claims Bruce and Abita are solidarity liable for her damages, including past and future medical bills, loss of enjoyment of life, emotional distress/mental anguish, loss of range of motion, future loss of wages and/or earning capacity, past lost wages due to surgery and recuperation, and other general and equitable relief.

Henly also claims that in addition to its vicarious liability for Bruce's actions, Abita is individually liable for actively discouraging her from filing a workers' compensation claim after her injury, demoting her to cashier, reducing her working hours, replacing her as shipping clerk with a male employee, and harassing her to the point that she was forced to resign. These acts form the basis of Henly's claims of sex discrimination and retaliation for filing a workers' compensation claim. In addition to the previously listed items of damages for Abita's vicarious liability for Bruce's actions, Henly seeks punitive damages, attorney fees, and costs from Abita for its independent liability.

Abita filed a third-party demand against Travelers, seeking insurance coverage under its commercial general liability policy, as well as a defense, to Henly's claims against it and reimbursement of litigation expenses already incurred. Travelers filed an answer denying coverage and a duty to defend on the basis of exclusions in the policy, including the workers' compensation exclusion, the "bodily injury to an employee" exclusion, the employment-related practices exclusion, and the discrimination exclusion. Abita filed a motion for partial summary judgment against Travelers, seeking a judgment declaring that Travelers owed It a duty to defend the claims asserted against it by Henly in this case, compelling Travelers to provide that defense, and awarding damages sufficient to reimburse Abita for the attorney fees and other litigation costs it had incurred in defending itself in this lawsuit. Travelers filed a cross-motion for summary judgment on both the coverage and defense issues. After a hearing, the district court granted Travelers' motion as to both coverage and defense and denied Abita's motion, stating in written reasons for judgment that "the Travelers policy clearly and unambiguously excludes coverage for the acts alleged in the petition of . . . Henly" and "Travelers does not have a duty to defend . . . [Abita] against the allegations . . . [of] Henly."

Abita appealed, claiming the district court erred in ruling that Travelers has no duty to defend it, and further erred in denying Abita's request for reimbursement of defense costs. Abita contends it had *1108 "possible liability," based on the allegations of Henly's petition concerning one particular incident, and therefore, Travelers is required to provide it with a defense and pay its defense costs, including attorney fees.

APPLICABLE LAW

Summary Judgment

An appellate court reviews a district court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See LSA-C.C.P. art. 966(E); Bilbo for Basnaw v. Shelter Ins. Co., 96-1476 (La.App. 1st Cir.7/30/97), 698 So.2d 691, 694, writ denied. 97-2198 (La.11/21/97), 703 So.2d 1312. 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. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. When 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 there is no genuine issue of material fact remains with the party bringing the motion. See LSA-C.C.P. art. 966(C)(2); Buck's Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some provision or exclusion applies to preclude coverage. See Simmons v. Weiymann, 05-1128 (La.App. 1st Cir.8/23/06), 943 So.2d 423, 425.

Insurance Policy Interpretation

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). The judicial responsibility in interpreting insurance contracts is to determine the parties' common intent. See LSA-C.C. art.2045; Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763. If the language in an insurance contract is clear and explicit, no further interpretation may be made in search of the parties' intent. LSA-C.C. art.2046.

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Bluebook (online)
971 So. 2d 1104, 2006 La.App. 1 Cir. 1856, 2007 La. App. LEXIS 1795, 2007 WL 2850525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henly-v-phillips-abita-lumber-co-lactapp-2007.