McGill v. Cochran Sysco Foods

690 So. 2d 952, 1997 WL 88347
CourtLouisiana Court of Appeal
DecidedFebruary 26, 1997
Docket29154-CA
StatusPublished
Cited by7 cases

This text of 690 So. 2d 952 (McGill v. Cochran Sysco Foods) 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
McGill v. Cochran Sysco Foods, 690 So. 2d 952, 1997 WL 88347 (La. Ct. App. 1997).

Opinion

690 So.2d 952 (1997)

Dolly McGILL, Plaintiff-Appellee,
v.
COCHRAN SYSCO FOODS, a DIVISION OF SYSCO CORPORATION, and Jet Spray Corporation, Defendants-Appellants,
United States Fire Insurance Company, Third Party Defendant-Appellee.

No. 29154-CA.

Court of Appeal of Louisiana, Second Circuit.

February 26, 1997.
Writ Denied May 1, 1997.

Crawford & Anzelmo by Donald J. Anzelmo, Monroe, for defendants-appellants Sysco Corporation and Cochran-Sysco Foods.

*953 Davenport, Files & Kelly, L.L.P. by William G. Kelly, Jr., Monroe, for Jet Spray Corporation.

Lunn, Irion, Johnson, Salley & Carlisle by Frank M. Walker, Jr., Shreveport, for Fidelity & Casualty Co. of New York.

Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P. by Gus A. Fritchie, III, New Orleans, for third party defendant-appellee United States Fire Insurance Co.

C. Kevin Hayes and Rhett R. Ryland, Baton Rouge, for Dolly McGill.

Before GASKINS, CARAWAY and PEATROSS, JJ.

CARAWAY, Judge.

After being named defendants in a product liability suit, Cochran Sysco Corporation and its parent corporation Sysco Corporation (hereinafter collectively "Sysco"), filed a third party demand against U.S. Fire Insurance Company ("U.S. Fire") asserting that U.S. Fire provided insurance coverage to Sysco. U.S. Fire denied coverage and filed a motion for summary judgment which the trial court granted. Sysco appeals. For the reasons expressed below, we reverse the summary judgment and remand for further proceedings.

Factual and Procedural History

Sysco purchased an electric tea machine from Jet Spray Corporation ("Jet Spray"), the manufacturer, and installed it in the North Monroe Hospital cafeteria. Sysco sold tea to the hospital and provided the tea machine to the hospital in an effort to increase tea sales. Sysco retained ownership of the machine and was responsible for repairs. In September 1992, Dolly McGill, a hospital employee, received an electric shock while attempting a minor adjustment to the machine. Ms. McGill filed suit against Jet Spray and Sysco alleging product liability and negligence.

Sysco filed a cross claim against Jet Spray seeking indemnity under a "Hold Harmless Agreement". Under said agreement Jet Spray also agreed to purchase insurance naming Sysco as an additional insured with respect to comprehensive general and product liability. Sysco also filed a third party claim against U.S. Fire asserting coverage under a policy issued by U.S. Fire to Jet Spray. U.S. Fire denied coverage and filed a motion for summary judgment. Prior to trial, Dolly McGill settled her claims with all defendants. Sysco reserved its right to pursue the cross claim and the third party claim. Following argument, the trial court granted U.S. Fire's motion for summary judgment and dismissed the insurance company from the suit.

Summary Judgment Standard

Appellate courts review summary judgments de novo, using the same criteria applied by the trial court in determining whether summary judgment is appropriate. Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992). A motion for summary judgment shall be granted when the mover establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. The decision is made on the basis of the pleadings, affidavits and discovery documents in the record. La. C.C.P. art. 966 B. A material fact is one whose existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery, i.e., one that would matter on the trial of the merits. A genuine issue is a triable issue. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751; Whitney National Bank v. Rockwell, 94-3049 (La. 10/16/95), 661 So.2d 1325.

The interpretation of an insurance contract is usually a legal question which can be properly resolved by means of a motion for summary judgment. State Farm Mutual Auto Insurance Co. v. Casualty Reciprocal Exchange, 600 So.2d 106 (La.App.2d Cir. 1992). (Emphasis added). However, the summary judgment procedure is rarely appropriate in a negligence case where the decision turns on a determination of whether the defendant's conduct constituted a tort, since such a determination almost always involves a factual dispute. Whatley v. Caddo Parish Sheriff's Department, 27,321 (La. App.2d Cir. 9/27/95), 661 So.2d 557.

*954 Discussion

Although Sysco is not specifically named as an insured under Jet Spray's policy with U.S. Fire, it asserts coverage under the vendor's endorsement of the contract. U.S. Fire based its motion for summary judgment on its assertion that Sysco is not a vendor of the tea machine because Sysco did not sell the machine to the hospital but instead retained ownership and responsibility for all repairs.

The central question therefore is whether Sysco is a "vendor" within the meaning of the policy. The vendor's endorsement does not limit the number of vendors insured or list them by name. Neither does the policy exclude any Jet Spray products. The policy endorsement provides in pertinent part:

WHO IS AN INSURED (Section II) is amended to include as an insured any person or organization (referred to below as vendor) shown in the Schedule, but only with respect to "bodily injury" or "property damage" arising out of "your products" shown in the Schedule which are distributed or sold in the regular course of the vendor's business subject to the following exclusions:
1. The insurance afforded the vendor does not apply to:
* * * * * *
e. Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business in connection with the distribution or sale of the products.
f. Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product.

The parties' intent, as reflected by the words of the policy, determines the extent of coverage. La.C.C. art. 2045. Words and phrases used in a policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. La.C.C. art. 2047. If the language of the policy is clear, unambiguous and expressive of the parties' intent, it must be enforced as written and any ambiguity that persists after applying the usual rules of construction must be construed against the drafter and in favor of the insured. Ambiguity will also be resolved by ascertaining how a reasonable insurance policy purchaser would construe the clause at the time the insurance contract was entered. Doubtful provisions in insurance policies should be interpreted to afford rather than deny coverage. Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Company, 630 So.2d 759 (La.1994). Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Ledbetter v. Concord General Corp., 95-0809 (La. 1/6/96), 665 So.2d 1166.

In Lambert v. Maryland Cas. Co., 418 So.2d 553 (La.1982), the court discussed contractual interpretation:

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Cite This Page — Counsel Stack

Bluebook (online)
690 So. 2d 952, 1997 WL 88347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgill-v-cochran-sysco-foods-lactapp-1997.