J. Caldarera & Company, Inc. Versus Triumph Construction, L.L.C.

• Court: Louisiana Court of Appeal
• Decided: September 22, 2021
• Docket: 21-CA-75
• Status: Unknown

Opinion

J. CALDARERA & COMPANY, INC. NO. 21-CA-75

VERSUS FIFTH CIRCUIT

TRIUMPH CONSTRUCTION, L.L.C. COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 70,409, DIVISION "B" HONORABLE KIRK A. VAUGHN, JUDGE PRO TEMPORE AND HONORABLE NGHANA LEWIS, JUDGE PRESIDING

September 22, 2021

ROBERT A. CHAISSON JUDGE

Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and John J. Lee, Jr.

AFFIRMED RAC MEJ JJL COUNSEL FOR PLAINTIFF/APPELLANT, J. CALDARERA & COMPANY, INC. John W. Waters, Jr.

COUNSEL FOR DEFENDANT/APPELLEE, ATAIN SPECIALTY INSURANCE COMPANY Matthew D. Monson Kevin P. Riche' CHAISSON, J.

J. Caldarera & Company, Inc. (“Caldarera”) appeals a judgment of the trial

court granting a Motion for Summary Judgment filed by Atain Specialty Insurance

Company (“Atain”) that denied insurance coverage under a commercial general

liability (CGL) policy issued to Triumph Construction, L.L.C. (“Triumph”), for

claims made by Caldarera against Triumph arising from alleged acts and omissions

during the construction of Fontainebleau Junior High School. For the following

reasons, we affirm the judgment of the trial court.

BACKGROUND

Caldarera entered into a General Contract with the St. Tammany Parish

School Board to furnish all labor and materials and perform all work required for

the construction of Fontainebleau Junior High School. On May 4, 2015, Caldarera

and Triumph entered into a Subcontract Agreement for the performance of certain

parts of the work for the project, including the furnishing of labor and other

services necessary for the construction and installation of concrete foundation and

site pavement work.

A concrete pour was scheduled for Saturday, April 30, 2016, in advance of

on-coming inclement weather. In anticipation of the pour, Caldarera dug and

formed below grade trenches, arranged for delivery of concrete, and made other

preparations. Triumph’s workers failed to appear for the scheduled concrete pour.

Rain subsequently destroyed the pre-dug trenches and cave-ins of earthen

excavations. Triumph did not return to the construction project.

On March 8, 2017, Caldarera filed an initial Petition for Damages wherein it

alleged that Triumph breached the Subcontract Agreement for various acts and

omissions constituting both breach of contract and negligence, including failing to

show up for the concrete pour. Caldarera claimed damages as a direct result of

Triumph’s breaches and negligence including cost of overhead, cost of project

21-CA-75 1 completion, cost to redo work and repair other parts of the project damaged by

Triumph, cost of acceleration, and other damages to be shown at trial.

Following failed mediation by a professional construction mediator as

required by the terms of the Subcontract Agreement, Caldarera, on November 29,

2017, filed an Amended and Restated Petition for Damages naming as defendant

Atain, Triumph’s insurer, and stated the following acts and omissions by Triumph

allegedly constituting both breach of contract and negligence:

a. Failing to familiarize itself and its personnel with the requirements of the Project’s plans and specifications. b. Subcontracting its work to another contractor without discussing or notifying CALDARERA; a requirement of the Triumph subcontract. c. Subcontracting its work to an incompetent sub- subcontractor. d. Failing to notify CALDARERA it was using subcontractors to execute its work. e. Failing to man the Project with the quantity of skilled craftsman [sic] needed to keep pace with the Project … f. Abandoning the Project. g. Abandoning the Project without providing CALDARERA with reasonable and adequate notice. h. Failing to appear for a scheduled concrete pour. i. Failing to notify CALDARERA in advance that Triumph would not have a crew at the scheduled concrete pour. j. Failing to cure defects in its performance despite notice on at least two separate occasions. k. Refusing to return to the Project to complete its work. l. Failing to protect adjacent work. m. Failing to give consideration and respect for the work of other trades. n. Failing to coordinate installation of its work with the other trades. o. Failing to protect its work from adverse weather. p. All other breaches or negligence which may be shown at trial.

Caldarera also reiterated its claims for damages including the cost to repair

and replace damaged property, increased overhead, cost of completion, cost to

accelerate work, and loss of use of property.

On August 21, 2019, Atain filed a Motion for Summary Judgment Due to

Lack of Insurance Coverage seeking a ruling from the trial court that Atain has no

21-CA-75 2 contractual obligation to defend or indemnify Triumph against Caldarera’s claims

for damages stemming from the construction project. In support of this motion,

Atain argued that Caldarera’s claims do not trigger coverage under the Atain CGL

policy because a breach of contract is not an “accident” as that term is used in the

definition of “occurrence” in the insurance policy. Atain additionally argued that

even if the claims were to constitute an “accident” for purposes of the policy, they

would still not be covered because of various policy exclusions including the

Damage To Impaired Property or Property Not Physically Injured Exclusion, the

Subsidence Exclusion, the Work Product Exclusions, and the Contractual Liability

Exclusion. In support of its motion, Atain included both copies of the petition for

damages and the CGL policy issued to Triumph.

The trial court heard oral arguments on the motion, after which the matter

was taken under advisement. On February 4, 2020, the trial court issued a

judgment granting Atain’s motion. In subsequent written reasons for judgment, the

court stated that it agreed with Atain’s position that its policy did not provide

coverage for “breach of contract” claims arising from Triumph’s failure to perform

work in accordance with its contractual obligations and that the damages were not

cause by an “occurrence” as defined by the policy. The judgment was then

designated as final pursuant to La. C.C.P. art. 1915(A). Caldarera’s timely appeal

followed.

On appeal, Caldarera argues that the trial court legally erred in granting

Atain’s Motion for Summary Judgment because Caldarera’s claims do constitute

an “occurrence” within the meaning of Atain’s policy and because the policy

exclusions are inapplicable. We consider these arguments in our discussion below.

DISCUSSION

A motion for summary judgment is a procedural device used when there is

no genuine issue of material fact for all or part of the relief prayed for by a litigant.

21-CA-75 3 La. C.C.P. art. 966; Reynolds v. Bordelon, 14-2371 (La. 6/30/15), 172 So.3d 607,

610. A summary judgment is reviewed on appeal de novo, with the appellate court

using the same criteria that govern the trial court’s determination of whether

summary judgment is appropriate; i.e., whether there is any genuine issue of

material fact, and whether the movant is entitled to judgment as a matter of law. Id.

at 610. Interpretation of an insurance policy is usually a legal question that can be

properly resolved by means of a motion for summary judgment. Sanchez v. Sigur,

18-680 (La. App. 5 Cir. 1/16/19), 264 So.3d 587, 590. A summary judgment may

be rendered on the issue of insurance coverage alone, although there is a genuine

issue as to liability or damages. Henly v. Phillips Abita Lumber Co., 06-1856 (La.

App. 1 Cir. 10/3/07), 971 So.2d 1104, 1108.

We note from the beginning that genuine disputes of fact remain between

Triumph and Caldarera concerning the events surrounding the construction project

which are material to the underlying claims between them. While Triumph

opposed Atain’s Motion for Summary Judgment at the trial court, it has not joined

in this appeal. Neither Atain nor Caldarera argue on appeal that genuine issues of

material fact preclude the granting of summary judgment. The scope of our review

then is limited to the legal question of whether the CGL policy provides coverage

for Caldarera’s claims, and for the purposes of this review we accept as true the

well-pleaded allegations of fact set forth in Caldarera’s Amended and Restated

Petition for Damages. See, La. C.C.P. art. 966.

An insurance policy is a contract which must be construed by employing the

general rules for the interpretation of contracts. Dorsey v. Purvis Contracting

Grp., LLC, 17-369 (La. App. 5 Cir. 12/27/17), 236 So.3d 737, 741, writ denied, 18-

0199 (La. 3/23/18), 239 So.3d 296. The intent of the parties, as reflected by the

words of the insurance policy, determines the extent of coverage. Brazan v.

Washington, 16-61 (La. App. 5 Cir. 6/14/16), 194 So.3d 1274, 1279. An insurance

21-CA-75 4 policy should not be interpreted in an unreasonable or strained manner so as to

enlarge or to restrict its provisions beyond what is reasonably contemplated by its

terms or so as to achieve an absurd conclusion. Reynolds v. Select Properties, Ltd.,

634 So.2d 1180, 1183 (La. 1994). If the policy’s language clearly expresses the

parties’ intent and does not violate a statute or public policy, the policy must be

enforced as written. Dorsey, supra.

Atain issued Policy CIP276177 to Triumph, effective from January 14,

2016, to January 14, 2017. The insuring agreement for this policy states in

pertinent part the following:

1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or “suit” that may result. *** b. This insurance applies to “bodily injury” and “property damage” only if: (1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory;” (2) The “bodily injury” or “property damage” occurs during the policy period; …

The definitions section of the Atain policy defines “occurrence” and

“property damage” as follows:

13. “Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. *** 17. “Property Damage” means:

a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or

b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it.

21-CA-75 5 Pursuant to the language of the policy, in order to trigger coverage, the underlying

claims must constitute “property damage” caused by an “occurrence.”

Caldarera argues on appeal that the trial court erred in not finding that

coverage was trigged under the facts alleged in its petition for damages. Caldarera

claims that, pursuant to a number of construction cases concerning defective

workmanship, the damage sustained by Caldarera is an “occurrence” under a CGL

policy like Atain’s. We find this argument to be without merit, as shown by a

review of the language of the policy and the claims set forth in Caldarera’s

petition.

As stated above, the language of the policy states two distinct definitions for

“property damage” and “occurrence”. To conflate them as the same, as Caldarera

proposes, would radically alter the meaning of the insuring agreement such that it

would require the insurer to pay for all property damage regardless of whether it

was caused by an accident. Such an interpretation would change the meaning of

the insurance agreement from one designed to manage the risks of unforeseeable

accidents to one guaranteeing the quality of the subcontractor’s work, or, in other

words, a performance bond. We find such an interpretation unreasonably enlarges

the scope of the policy’s provisions beyond what is contemplated by its terms. As

the Louisiana Supreme Court has stated, a CGL policy is not written to guarantee

the quality of the insured's work or product. Supreme Servs. & Specialty Co., Inc.

v. Sonny Greer, Inc., 06-1827 (La. 5/22/07), 958 So.2d 634, 641.1

Caldarera’s argument is undermined as well by a review of the amended

petition, which shows no factual allegations relating to defective workmanship by

Triumph. Rather, the stated factual claims assert that Triumph did no work at all,

1 Section 12 of the Subcontract Agreement states that the contractor, Caldarera, has the option to require the subcontractor, Triumph, to furnish a payment or performance bond. There is no evidence indicating this option was exercised.

21-CA-75 6 that it failed to show up to the concrete pour, that it failed to notify Caldarera, that

it failed to protect its work from adverse weather - in other words, that it failed to

fulfill its contractual obligations set forth in the Subcontract Agreement. We do

not find that any of these acts and omissions alleged by Caldarera amount to an

“accident” for the purposes of triggering coverage under the CGL policy.

Accordingly, we find that the CGL policy does not provide coverage for

Caldarera’s claims against Triumph.

Having found no coverage under the policy, we pretermit any further

discussion concerning the applicability of the policy exclusions further relied upon

by Atain to deny coverage.

CONCLUSION

Upon our de novo review, we find that the CGL insurance policy issued by

Atain to Triumph does not provide coverage for the claims asserted by Caldarera

against Triumph in its Amended and Restated Petition for Damages. Atain is

therefore entitled to summary judgment as a matter of law.

AFFIRMED

21-CA-75 7 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY SEPTEMBER 22, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-75 E-NOTIFIED 40TH DISTRICT COURT (CLERK) HONORABLE KIRK A. VAUGHN, JUDGE PRO TEMPORE (DISTRICT JUDGE) HONORABLE NGHANA LEWIS (DISTRICT JUDGE) JOHN W. WATERS, JR. (APPELLANT) KEVIN P. RICHE' (APPELLEE)

MAILED MATTHEW D. MONSON (APPELLEE) GREGORY S. WEBB (APPELLEE) ATTORNEY AT LAW ATTORNEY AT LAW 900 WEST CAUSEWAY APPROACH POST OFFICE BOX 1738 SUITE A PRAIRIEVILLE, LA 70769 MANDEVILLE, LA 70471