L & L Sandblasting, Inc. v. American Southern Insurance Co.

407 So. 2d 482, 1981 La. App. LEXIS 5542
CourtLouisiana Court of Appeal
DecidedNovember 23, 1981
DocketNo. 14412
StatusPublished
Cited by2 cases

This text of 407 So. 2d 482 (L & L Sandblasting, Inc. v. American Southern Insurance 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
L & L Sandblasting, Inc. v. American Southern Insurance Co., 407 So. 2d 482, 1981 La. App. LEXIS 5542 (La. Ct. App. 1981).

Opinion

EDWARDS, Judge.

Plaintiff, L & L Sandblasting, Inc., instituted this action against its insurer, American Southern Insurance Company, alleging that defendant has defaulted on its obligations under an insurance policy and seeking return of the premium paid. After trial on the merits, the district court rendered judgment for defendant dismissing plaintiff’s demand. Plaintiff has taken a devolutive appeal from that judgment. We affirm.

[483]*483In March of 1977, plaintiff-appellant, L & L Sandblasting, Inc. (“L & L”) entered into a contract to do certain sandblasting and painting work for Shell Oil Company (“Shell”). The Shell “Work Order Conditions” required that plaintiff secure a liability insurance policy. The work order agreement also contained the following provision:

“Contractor shall indemnify Shell against all loss or damage arising out of the negligence of Contractor or any subcontractor and not within Contractor’s indemnity in the next following sentence. Contractor shall indemnify and defend Shell and its employees and agents against all claims, suits, liability and expense on account of injury or death of persons including employees of Shell or Contractor, and subcontractors and their employees or damage of property arising out of or in connection with performance of this Order, and not caused solely by Shell’s negligence without any contributory negligence or fault of Contractor or any subcontractor. Shell may participate in the defense of any such claim or suit without relieving Contractor of any obligation hereunder.”

L & L secured a contractual liability insurance policy from defendant-appellee, American Southern Insurance Company (“American Southern”). The “Designation of Contracts” section of the policy provided as follows:

“The policy covers only the work order agreement between Shell Oil Co. and the named insured (attached hereto). All other contracts must be approved by the company prior to coverage being afforded.”

The insurance policy provided coverage as follows:

“The company will pay on behalf of the insured all sums which the insured, by reason of contractual liability assumed by him under a contract designated in the schedule for this insurance, shall become legally obligated to pay as damages because of
Y. bodily injury or
Z. property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient ...” (Emphasis added.)

Herman Jason, an L & L employee, was injured while working on the Shell Oil Company job. Jason filed suit against Shell in Federal District Court, alleging that he was injured aboard a Shell Motor Vessel located off the Louisiana coast in the Gulf of Mexico. Shell called upon L & L to honor the indemnity provision of the work order cited above. Shell filed a cross-claim and third party complaint against American Southern seeking indemnity for any sum which it might have to pay Jason as well as expenses for the costs of defending Jason’s claim.

American Southern offered to defend L & L in the Jason matter, but refused to defend and indemnify Shell. American Southern’s attorney notified L & L that it was not legally obligated to pay the Jason claim because the indemnity provision of the work order agreement was void under Section 5(b) of the Longshoremen and Harbor Workers Compensation Act. L & L subsequently paid Jason $9,000.00 in settlement of his claim, in order to maintain good business relations with Shell.

L & L filed suit against American Southern seeking return of the insurance premium ($28,000.00) and attorney fees. Alternatively, L & L sought reimbursement for the $9,000.00 paid to Herman Jason in settlement of his claim.

The district court rendered judgment for the defendant dismissing plaintiff’s suit. The trial court stated that plaintiff had failed to prove that defendant had defaulted or that there was no contract of insurance. The court found that the defendant stood ready to fulfill its obligations under the policy, i.e., to defend L & L, but that plaintiff waived its defenses and settled the [484]*484suit as part of its customer relations with Shell. L & L has devolutively appealed the judgment of the district court. Appellant contends that it presented ample evidence to show that there was no valid contract of insurance because there was no meeting of the minds of the parties. Alternatively, appellant contends that if there was a contract of insurance, American Southern defaulted on its obligations under that contract.

L & L relies upon the testimony of its President, Richard D. LeDoux, to establish that there was not a valid contract of insurance. LeDoux testified that L & L would not have purchased the insurance policy unless the indemnity and hold harmless agreement were covered. L & L asserts that the coverage of the indemnity provision was the “cause” of the contract as that term is used in LSA-C.C. art. 1896,1 and that its consent was vitiated due to the vice of error as to the nature and object of the contract.2

In order to invalidate a contract for error, it is necessary that the error bear on the principal cause of the contract. This requirement is contained in LSA-C.C. art. 1823, which provides as follows:

“Errors may exist as to all the circumstances and fact which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.”

The insurance policy issued by American Southern covered a multitude of risks. The record clearly indicates that L & L sought coverage of all operations which were undertaken pursuant to the work order agreement. Under the section of the insurance policy entitled “Description of Hazards” the policy provided coverage for the following operations and premises:

“17235—Painting, decorating or paper hanging including shop operation. N.O.C. 42264—Contractors permanent yards—maintainance (sic) or storage of equipment or materials.”

Thus, the policy provided insurance coverage for a number of areas in which L & L was exposed to liability aside from the work order indemnity provision.

The trial court concluded that plaintiff did not bear its burden of proving that there was not a binding contract of insurance. This conclusion is obviously based on a finding that coverage of the indemnity provision was not the primary cause for L & L to obtain the insurance policy. In light of the fact that the contract of insurance covered such a wide range of other risks, this finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

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407 So. 2d 482, 1981 La. App. LEXIS 5542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/l-l-sandblasting-inc-v-american-southern-insurance-co-lactapp-1981.