Husband v. Lafayette Ins. Co.

635 So. 2d 309, 93 La.App. 5 Cir. 815, 1994 La. App. LEXIS 823, 1994 WL 81404
CourtLouisiana Court of Appeal
DecidedMarch 16, 1994
Docket93-CA-815
StatusPublished
Cited by6 cases

This text of 635 So. 2d 309 (Husband v. Lafayette Ins. 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
Husband v. Lafayette Ins. Co., 635 So. 2d 309, 93 La.App. 5 Cir. 815, 1994 La. App. LEXIS 823, 1994 WL 81404 (La. Ct. App. 1994).

Opinion

635 So.2d 309 (1994)

Thomas HUSBAND, et al.
v.
LAFAYETTE INSURANCE COMPANY.

No. 93-CA-815.

Court of Appeal of Louisiana, Fifth Circuit.

March 16, 1994.

Brian P. Quirk, New Orleans, for plaintiffs/appellants, Thomas Husband, et al.

Geoffrey H. Longenecker, Covington and Anderson Council, Kenner, for defendant/appellee, Lafayette Ins. Co.

*310 Before BOWES, GAUDIN and WICKER, JJ.

BOWES, Judge.

The plaintiffs, Shirley Ann Majors Husband and Thomas Husband, filed this suit against Lafayette Insurance Company (hereinafter "Lafayette") seeking to collect under an All Risk policy issued by Lafayette for a house owned by plaintiffs which was damaged by a tenant. Lafayette filed a third party demand against the tenant, G. Carlos Harris, and plaintiffs subsequently amended their suit to name Harris as a defendant. After trial on the merits, the court found that coverage existed under the policy and ruled in favor of plaintiffs, and against Lafayette and G. Carlos Harris, in solido, for $7,512.79. The trial court also ruled in favor of plaintiffs and against Harris for $2,800.00 (representing unpaid rent) and awarded attorneys fees to plaintiffs and against Harris of $700.00. Plaintiffs have appealed, alleging that the damages assessed by the trial court were inadequate. Lafayette also appealed alleging that 1) the trial court erred in finding that coverage existed under the policy; and 2) the trial court erred in finding that the plaintiffs proved a loss. Although Harris made a general appearance through counsel in this case, he did not appear at trial, nor did he appeal the judgment against him. We amend the judgment to increase the award of damages and of attorney fees and, as amended, affirm the judgment of the trial court.

FACTS

The facts of this case show that the plaintiffs built the house in 1979 and resided there for approximately nine years, or until 1988, when Mr. Husband accepted employment in Chattanooga, Tennessee. Due to a deflated real estate market, the plaintiffs could not find a buyer for the house, so they decided to lease it. The plaintiffs hired a local real estate agent, Carol Biddle-Frome, to list and to handle the lease of their house. The house was initially leased to the Ballouns, who resided in the house for two years, from August 1988 to July 1990.

In August of 1990, the house was leased to defendant, G. Carlos Harris. The lease agreement executed on August 7, 1990, provided in pertinent part:

OCCUPANCY Should Lessee be unable to obtain occupancy on the date of the beginning of the lease due to causes beyond control of Lessor, this lease shall not be affected thereby, but Lessee shall owe rent beginning only with the day on which he can obtain possession. Should the property be destroyed or materially damaged so as to render it wholly unfit for occupancy by fire or other unforeseen event not due to any fault or neglect of Lessee, then Lessee shall be entitled to a credit for the unexpired term of the lease. However Lessee shall not be entitled to a reduction of the monthly rent or cancellation of this lease because of a temporary failure of utilities, heat, air conditioning or temporary losing of swimming pool. ADDITIONS & Neither Lessor nor Lessee shall make additions or alterations to the premises without written permission of the ALTERATIONS other. However, Lessor or his employees shall have the right to enter the premises for the purpose of making repairs necessary to the preservation of the property. Any additions made to the property by the Lessee shall become the property of Lessor at the termination of this lease unless otherwise stipulated herein. No holes shall be drilled in the walls, woodwork or floors and no antenna installations are permitted. No painting or preparing of walls is permitted. No water beds. No foil in windows. No hurricane tape allowed to stay in windows after danger ceases. OTHER A temporary visitor is one who inhabits the property for no more than ten (10) days. CONDITIONS In the event the subject property is sold to any party during the term of this lease. The Prudential Louisiana Properties shall receive a _________________ % commission of the gross sales price of the property. READ YOUR LEASE BEFORE SIGNING

At the signing of the lease, Mr. Harris executed two checks, one for a $1000.00 security deposit, and one for $600.00 representing prorated rent for the month of August.

Shortly after signing the lease, and without the knowledge or approval of the plaintiffs, Harris made many significant alterations to the decor of the house. He painted over panelled walls, wallpapered walls, stained *311 wood moldings and doors and the brick fireplace. He ripped up carpeting and replaced it with linoleum. He also placed mirrored tiles on both the wallpaper and painted walls. The work performed by Mr. Harris was shoddy and extremely unprofessional. As stated by the trial court in her findings of fact "It is an understatement to say that the alterations were disastrous."

Harris vacated the house during the first week of September due to an unrelated racial incident involving the neighbor next door. At this time, Carol Biddle discovered the alterations which had been made and she notified the plaintiffs. Additionally, the checks issued by Harris were returned by his bank marked "Account Closed," leaving plaintiffs with no rent and no security deposit.

The plaintiffs filed a claim with Lafayette, the insurance carrier of the All Risk policy covering the house. They were initially informed by the insurance adjuster that the damage was not covered as tenant abuse. At trial of this matter, Lafayette contended that the coverage should be denied as a result of a faulty, inadequate or defective workmanship exclusion in the policy. The trial court found that because the renovations were not authorized by the insured, coverage was not excluded.

ANALYSIS

It is well established that an insurance policy is the contract between the parties, and as such, must be interpreted in accordance with general principles of contract construction. Kupperman & Co., Inc. v. Buffalo Ins. Co., 535 So.2d 1 (La.App. 4 Cir.1988). Courts are bound to give legal effects to all contracts, including contracts of insurance, according to the true intent of the parties, which is to be determined by the words in the contract when they are clear and explicit and lead to no absurd consequences. Foret v. Louisiana Farm Bureau Cas. Ins., 582 So.2d 989 (La.App. 1 Cir.1991) citing Bardwell v. American National Ins. Co., 94 So.2d 313 (La.1957). An insurance contract shall be construed as a whole and one section is not to be construed separately or at the expense of disregarding other sections. Benton Casing Service v. Avemco Ins. Co., 379 So.2d 225 (La.1979). Any ambiguity in a policy of insurance must be liberally construed in favor of the insured and against the insurer. If the ambiguity relates to limitation of liability under the policy, the provision will be liberally interpreted in favor of coverage. Pomares v. Kansas City Southern Railway Company, 474 So.2d 976 (La.App. 5 Cir.1985) writ denied, 477 So.2d 1131 (La. 1985).

Lafayette claimed that the damage caused by Harris was excluded under the following policy provision:

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Bluebook (online)
635 So. 2d 309, 93 La.App. 5 Cir. 815, 1994 La. App. LEXIS 823, 1994 WL 81404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/husband-v-lafayette-ins-co-lactapp-1994.