Jincy Lynn Ryder v. Dane Darby

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

09-122

JINCY LYNN RYDER, ET AL.

VERSUS

DANE DARBY, ET AL.

************

APPEAL FROM THE

SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 70216 HONORABLE WILLIAM D. HUNTER, DISTRICT JUDGE

************

MICHAEL G. SULLIVAN

JUDGE

************

Court composed of Oswald A. Decuir, Michael G. Sullivan, and Billy Howard Ezell, Judges.

AFFIRMED.

David C. Laborde Bradley G. Frizzell The LaBorde Law Firm Post Office Box 80098 Lafayette, Louisiana 70598-0098 (337) 261-2617 Counsel for Plaintiffs/Appellants:

Jincy Lynn Ryder Lisa Guidry

Richard J. Petre, Jr. Onebane Law Firm Post Office Drawer 3507 Lafayette, Louisiana 70502-3507 (337) 237-2660 Counsel for Defendant/Appellee:

Colony Insurance Company

Byron A. Richie Richie, Richie & Oberle, L.L.P. Post Office Box 44065 Shreveport, Louisiana 71134 (318) 222-8305 Counsel for Defendant Appellee:

Dane Darby

Charles C. Garrison Caffery, Oubre, Campbell & Garrison Post Office Drawer 12410 New Iberia, Louisiana 70562-2410 (337) 364-1816 Counsel for Defendant/Appellee:

Louisiana Farm Bureau Casualty Insurance Company

Joseph P. Hebert Liskow & Lewis 822 Harding Street Lafayette, Louisiana 70503 (337) 232-7424 Counsel for Defendant/Appellee:

Smoker Friendly of Southern Louisiana, LLC

W. Glenn Soileau Attorney at Law Post Office Box 344 Breaux Bridge, Louisiana 70517 (337) 332-4561 Counsel for Plaintiffs/Appellees:

Elizabeth Stelly (in consolidated case) Frederick Stelly (in consolidated case)

Michael G. Gee Porteous, Hainkel and Johnson, L.L.P. 211 West Fifth Street Thibodaux, Louisiana 70301 (985) 446-8451 Counsel for Defendants/Appellees:

Mr. & Mrs. Charles Foster

Leah B. Guilbeau Attorney at Law 4023 Ambassador Caffery, Suite 100 Lafayette, Louisiana 70503 (337) 988-7240 Counsel for Defendant/Appellee:

State Farm Mutual Auto Insurance Company

James P. Doherty Frederick Law Firm Post Office Box 52880 Lafayette, Louisiana 70505 (337) 269-5143 Counsel for Defendants/Appellees:

Kristen Renee Olivier Imperial Fire and Casualty Insurance Company

John Michael Morrow Morrow, Gates & Morrow Post Office Drawer 219 Opelousas, Louisiana 70571-0219 (337) 942-6529 Counsel for Defendant/Appellee:

Louisiana State Farm

Jill McGee In Proper Person 1014 Courville Road Breaux Bridge, Louisiana 70517 Plaintiff/Appellee

SULLIVAN, Judge.

Plaintiffs, Jincy Ryder and her mother, Lisa Guidry, appeal the trial court’s

grant of summary judgment in favor of defendant, Colony Insurance Company

(Colony), and the resulting dismissal of their claims against it. For the following

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ryder was injured on August 20, 2005, when the driver of a vehicle in which

she and several of her friends was riding ran a stop sign, entered a ditch, and struck

an embankment off of Louisiana Highway 347 in St. Martin Parish. The driver of the

vehicle, Dane Darby, was twenty years old on the date of the accident. As a result of

the accident, Ryder sustained severe facial and head injuries and had to undergo

multiple reconstructive surgeries.

A petition for damages was filed by Ryder and Guidry on January 27, 2006.1

Therein, plaintiffs alleged that Darby was intoxicated at the time of the accident.

They claimed that early in the evening of the accident, Darby had purchased vodka

and other alcoholic beverages through a drive-through window at D & M Leger

Holding, Inc. d/b/a Smoker Friendly of Henderson (Smoker Friendly), which he

consumed and distributed to the passengers in the vehicle. Thereafter, Darby drove

to the home of Mr. and Mrs. Charles Foster, where a party was being hosted by the

Fosters’ minor son. According to the petition, Darby and his passengers were served

alcohol at the party. The accident occurred after Darby and his passengers left the

party. Included in the named defendants were Smoker Friendly and its alleged

1 Although Ms. Ryder was only sixteen years old at the time of the accident, the petition alleged that she was fully emancipated.

2

liability insurer, Colony.2 Plaintiffs asserted that a legal cause of the accident was

Smoker Friendly’s negligence in having served alcoholic beverages to Darby when

it knew or should have known that he was a minor.

Colony filed a motion for summary judgment seeking dismissal from the suit

based on the “liquor liability exclusion” contained in the policy that it had issued to

Smoker Friendly. Plaintiffs opposed the motion, arguing that an amending

endorsement attached to the policy expanded the coverage afforded under the policy.

Colony then filed a reply memorandum wherein it argued that the amending

endorsement simply imposed another condition that needed to be met for coverage

to attach, and that even if all four of the conditions were met, the policy did not

provide coverage if any of the exclusions applied. Following a hearing, the trial court

granted Colony’s motion for summary judgment and dismissed plaintiffs’ claims

against it with prejudice at plaintiffs’ cost. Plaintiffs now appeal, asserting that the

trial court erred in granting summary judgment in favor of Colony because there is

coverage under the Colony insurance policy.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria

applied by the trial courts to determine whether summary judgment is appropriate.

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. A

motion for summary judgment will be granted if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue of material fact and that the mover is entitled to

judgment as a matter of law. La.Code Civ.P. art. 966(B). Summary judgment is

2 Although the petition named ABC Insurance Company as the insurer of Smoker Friendly, plaintiffs later amended to substitute Colony as the correct insurer of that entity.

3

favored and shall be construed “to secure the just, speedy, and inexpensive

determination of every action . . . .” La.Code Civ.P. art. 966(A)(2).

The supreme court set out the framework for interpreting insurance coverage

questions in Succession of Fannaly v. Lafayette Insurance Co., 01-1144, 01-1343, 01-

1355, 01-1360, pp. 3-4 (La. 1/15/02), 805 So.2d 1134, 1137 (emphasis added)

(citations omitted):

An insurance policy is an aleatory, nominate contract subject to the general rules of contract interpretation as set forth in our civil code. The extent of coverage under an insurance contract is dependent on the common intent of the insured and insurer. Thus, when interpreting an insurance contract, courts must attempt to discern the common intent of the insured and insurer.

In ascertaining the common intent of the insured and insurer, courts begin their analysis with a review of the words in the insurance contract. Words in an insurance contract must be ascribed their generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. Moreover, an insurance contract is construed as a whole and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions.

In Jessop v. City of Alexandria, 03-1500, p. 2 (La.App. 3 Cir 3/31/04), 871

So.2d 1140, 1142-43, writ denied, 04-1529 (La. 10/1/04), 883 So.2d 991 (quoting

Miller v. Superior Shipyard and Fabrication, Inc., 01-2907, p. 4 (La.App. 1 Cir.

8/20/03), 859 So.2d 159, 162, writ denied, 03-2643 (La. 12/12/03), 860 So.2d 1159

(citations omitted)), this court noted that:

Interpretation of an insurance policy is usually a legal question that can be properly resolved by means of a motion for summary judgment. When determining whether a policy affords coverage for an incident, the insured bears the burden of proving the incident falls within the policy’s terms. Summary judgment declaring a lack of coverage under an insurance policy may be rendered only if 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.

4

In Boudreaux v. Siarc, Inc., 97-1067, p. 2 (La.App. 5 Cir. 4/15/98), 714 So.2d

49, 50, writ denied, 98-1556 (La. 9/18/98), 724 So.2d 744, the court noted:

State law protects merchants from liability for selling alcohol to persons over the legal age to purchase it. La. R.S. 9:2800.1 provides for limitation of liability for loss connected with sale, serving, or furnishing of alcoholic beverages to a person over the age for the lawful purchase thereof. The legislative intent is to make clear that “the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.” La. R.S. 9:2800.1(A).

That law does not protect persons selling alcohol to minors, however. See Hopkins v. Sovereign Fire & Cas. Ins. Co., 626 So.2d 880 (La.App. 3 Cir.1993), writ denied 93-2958 (La.3/11/94), 634 So.2d 402, and 94-0154 (La.3/11/94), 634 So.2d 390.

The Colony Policy

The policy issued by Colony to Smoker Friendly was a commercial general

liability and commercial property policy. The Colony policy provided as follows:

SECTION 1 - COVERAGES

COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY

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:

5

(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; and

(3) Prior to the policy period, no insured listed under Paragraph 1. of Section II - Who is An Insured and no “employee” authorized by you to give or receive notice of an “occurrence” or claim, knew that the “bodily injury” or “property damage” had occurred, in whole or in part. If such a listed insured or authorized “employee” knew, prior to the policy period, that the “bodily injury” or “property damage” occurred, then any continuation, change or resumption of such “bodily injury” or “property damage” during or after the policy period will be deemed to have been known prior to the policy period.

An amending endorsement attached to the policy states, in pertinent part:

This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART

SCHEDULE

BUSINESS DESCRIPTION: TOBACCO PRODUCTS STORES

A SECTION I - COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 1. Insuring Agreement, b. is amended and the following is added:

(4) The “bodily injury” or “property damage” is caused by or results from the business described in the Schedule.

The “Insuring Agreement” is followed by an “Exclusions” section which

provides that:

This insurance does not apply to:

....

6

c. Liquor Liability

“Bodily injury” or “property damage” for which any insured may be held liable by reason of:

(1) Causing or contributing to the intoxication of any person;

(2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or

(3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.

This exclusion applies only if you are in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages.

Did the Colony policy provide coverage for plaintiffs’ damages?

In their appellant brief, the plaintiffs admit that “[g]iven that [liquor liability]

exclusion in isolation, the District Court would have been correct in granting

summary judgment.” Plaintiffs further acknowledge that “Louisiana courts have held

that such a broad exclusion precluded coverage for any liability for causing or

contributing to the intoxication of any person or for furnishing alcoholic beverages

to persons under the legal drinking age.” Nevertheless, plaintiffs submit that the

amending endorsement attached to the policy extends coverage to activities

associated with the insured’s business description, that of a tobacco products store.

Plaintiffs argue that “[w]ere the endorsement not intended to extend coverage as such,

its inclusion in the policy would be useless and redundant.” Attached to plaintiffs’

opposition to summary judgment is an affidavit from plaintiff, Lisa Guidry, a resident

of Henderson who is familiar with the Smoker Friendly store where Darby was

allegedly able to purchase alcohol in this case. Therein, Guidry stated that since the

time it began doing business at that location Smoker Friendly has sold alcohol

7

products. Because the sale of alcohol fell within Smoker Friendly’s business

description, plaintiffs argue that the Colony policy should provide coverage for their

injuries because those injuries arose out of Smoker Friendly’s sale of alcohol.

For purposes of its summary judgment motion, Smoker Friendly did not deny

that it was in the business of selling alcohol, nor did it deny that one of its employees

sold alcohol to Darby on the date in question. Rather, it argues that coverage is not

afforded under the policy because of the liquor liability exclusion. Smoker Friendly

contends that “plaintiffs’ interpretation of the policy would result in coverage for all

damages resulting from the described business of [a] tobacco products store, would

write out of the policy every exclusion, and would lead to absurd results.” Smoker

Friendly argues that such an interpretation ignores the architecture of the policy, the

intent of the parties, and the general rules for interpreting insurance policies. It

further submits that the purpose of the endorsement was to limit coverage, not to

enlarge coverage to include any damages resulting from the business of operating a

tobacco products store.

The trial court ruled that the Colony policy did not provide coverage for

plaintiffs’ damages. We have performed a de novo review of the evidence submitted

in conjunction with the insurance coverage question at issue herein and, we, too, find

that summary judgment was properly granted in favor of Colony because it succeeded

in pointing out that Plaintiffs would not be able to meet their burden of proof at trial

with regard to coverage under the Colony policy for any liability on the part of

Smoker Friendly. Under Plaintiffs’ theory, the exclusions listed in the Colony policy

after the coverage section would be completely ignored. Plaintiffs’ interpretation of

8

the policy is simply unreasonable and would lead to absurd results that were not

contemplated by Smoker Friendly and Colony when the policy was confected.

DECREE

For the foregoing reasons, we affirm the October 3, 2007 judgment of the trial

court granting summary judgment in favor of Colony Insurance Company and

dismissing the claims against it by plaintiffs, Jincy Ryder and Lisa Guidry, with

prejudice. All costs of this appeal are assessed against plaintiffs.

AFFIRMED.