Holt v. Phipps

733 So. 2d 693, 1999 WL 228756
CourtLouisiana Court of Appeal
DecidedApril 21, 1999
Docket98-1127
StatusPublished
Cited by3 cases

This text of 733 So. 2d 693 (Holt v. Phipps) 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
Holt v. Phipps, 733 So. 2d 693, 1999 WL 228756 (La. Ct. App. 1999).

Opinion

733 So.2d 693 (1999)

Larry P. HOLT, Plaintiff-Appellant,
v.
Bill Worthington PHIPPS, et al., Defendant-Appellee.

No. 98-1127.

Court of Appeal of Louisiana, Third Circuit.

April 21, 1999.

*694 Mel Lewis Credeur, Lafayette, for Larry P. Holt.

John P. Guillory, Lafayette, for Bill Worthington Phipps, et al.

Edward C. Abell, Jr., Lafayette, for Scottsdale Insurance Company.

BEFORE: COOKS, DECUIR, and AMY, Judges.

COOKS, Judge.

Larry P. Holt appeals a judgment of the trial court granting summary judgment in favor of Scottsdale Insurance Company, dismissing his suit for damages. We affirm.

BACKGROUND FACTS AND PROCEDURAL HISTORY

On August 20, 1993, Holt traveled to Bill's Flea Market to visit some friends. While there, Holt and the store's proprietor, Bill Worthington Phipps, argued over a debt owed by Holt to the store. After apparently settling the issue, Holt left the store and began walking to his car. Before Holt could enter the car, Phipps came from behind and struck him in the head with an iron fireplace poker. As he fell to the ground, Phipps began to retreat. Holt, with the help of a friend, was able to leave the scene and procure emergency assistance. Eventually, Phipps was arrested and charged with aggravated assault and aggravated battery.

Holt brought suit against Phipps and Phipps d/b/a Bill's Flea Market for injuries to his neurological system, left ear, head, and neck suffered as a result of the attack. This suit was later amended to include Scottsdale, general liability insurer of Phipps d/b/a Bill's Flea Market. In response, Scottsdale filed for summary judgment claiming, because the assault and battery was intentional, neither the acts nor the resulting injuries are covered by the insurance policy. The trial court granted the motion thereby dismissing Holt's claim against Scottsdale. Holt now appeals this ruling.

ASSIGNMENTS OF ERROR

Holt assigns the following errors for review:

1. The trial court erred in granting summary judgment based upon the exclusions asserted by Scottsdale Insurance Company.
2. The trial court erred in refusing to admit the hand written statement of the defendant under an exception to the hearsay rule.

LAW AND ANALYSIS

Hand Written Statement

Phipps died shortly after this suit was instituted without first being deposed. *695 Prior to his death, however, Phipps visited the Lafayette Parish Sheriff's office to respond to a criminal investigation lodged against him as a result of the parking lot encounter. He hand wrote a statement detailing his version of the event. According to Phipps, Holt initiated the confrontation by threatening to strike Phipps with a cane. Phipps explained, in an effort to protect himself, he inadvertently struck Holt with the poker. Because this statement, on its face, raises a genuine issue of material fact regarding whether Phipps' intended to strike and injure Holt, it was offered in opposition to Scottsdale's motion for summary judgment. The trial court refused Phipps' statement, finding it constituted inadmissible hearsay.

Phipps' voluntary statement to the police is clearly hearsay. La.Code Evid. art. 801. Holt argues, even though Phipps' statement is hearsay, it is admissible as a statement against interest. La. Code Evid. art. 804(B) provides in pertinent part:

Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.

The purpose of liability insurance is to afford the insured protection from damage claims. Borden, Inc. v. Howard Trucking Co., Inc., 454 So.2d 1081 (La.1983). As insurer, Scottsdale, must pay those damages for which Phipps is liable as a result of bodily injury or property damage caused by him. Bodily injury arising from negligent conduct is covered by the insurance policy. Under the terms of the agreement, however, intentionally inflicted injuries are excluded from coverage. Accordingly, if true, Phipps' admission of negligence would bring Holt's injuries within the scope of coverage. Hence, Phipps would be protected from incurring any "out-of-pocket expenses" if found liable for Holt's injuries. Phipps' statement was designed to protect his pecuniary and proprietary interests. Phipps' avowal was not a statement against his interest. La. Code Evid. art. 804(B)(3). To the contrary, it was uttered to avoid criminal, as well as civil consequences associated with his action. As such, the trial court properly declared it inadmissible.

Summary Judgment

As a general principle, "[a]ppellate courts review summary judgments de novo, under the same criteria which governs the district court's consideration of the appropriateness of summary judgment." Potter v. First Federal Savings & Loan Ass'n of Scotlandville, 615 So.2d 318, 325 (La.1993), citing Schroeder v. Board of Sup'rs of Louisiana State University, 591 So.2d 342, 345 (La.1991). Thus, we shall conduct a de novo review of the trial record in this suit to determine if summary judgment was properly granted.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish those ends. La.Code Civ.P. art. 966(A)(2). Further, La.Code Civ.P. art. 966(C) provides:

(1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements *696 of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Article 966 brings Louisiana's standard for summary judgment closely in line with the federal standard found in Fed.Rule Civ.Pro. 56(c). Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96); 685 So.2d 691. Accordingly, "there is no genuine issue of material fact if the nonmoving party cannot come forward at the summary judgment stage with evidence of such sufficient quantity and quality for a reasonable juror to find the party can satisfy his substantive evidentiary burden." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Sassone v. Elder, 626 So.2d 345 (La.1993). Furthermore, La. Code Civ.P. art. 967 provides in pertinent part:

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Cite This Page — Counsel Stack

Bluebook (online)
733 So. 2d 693, 1999 WL 228756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holt-v-phipps-lactapp-1999.