McMath Const. Co., Inc. v. Dupuy

897 So. 2d 677, 2004 WL 2601197
CourtLouisiana Court of Appeal
DecidedNovember 17, 2004
Docket2003 CA 1413
StatusPublished
Cited by29 cases

This text of 897 So. 2d 677 (McMath Const. Co., Inc. v. Dupuy) 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
McMath Const. Co., Inc. v. Dupuy, 897 So. 2d 677, 2004 WL 2601197 (La. Ct. App. 2004).

Opinion

897 So.2d 677 (2004)

McMATH CONSTRUCTION COMPANY, INC.
v.
Glen DUPUY d/b/a Specialty Services and Colony Insurance Company.

No. 2003 CA 1413.

Court of Appeal of Louisiana, First Circuit.

November 17, 2004.
Writ Denied February 18, 2005.

*679 John S. Lawrence, Jr., Mandeville, for Plaintiff-Appellant McMath Construction Co., Inc.

Kevin L. Cole, Cynthia J. Thomas, Chopin, Wagar, Cole, Richard, Reboul & Kutcher, L.L.P., Mandeville, for Defendant-Appellee Colony Insurance Co.

Before: CARTER, C.J., PARRO, and GUIDRY, JJ.

PARRO, J.

McMath Construction Company, Inc. (McMath) appeals the granting of summary judgment in favor of Colony Insurance Company (Colony), finding there was no coverage under its commercial general liability policy for the claims McMath brought against Colony's insured, Glen Dupuy, d/b/a Specialty Services (Dupuy). We amend and affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

McMath was the general contractor on a condominium complex in Mandeville, Louisiana, and hired Dupuy to install the stucco exterior insulation and finish system. Dupuy was insured by Colony. After Dupuy's work was completed and he had been paid, the building leaked around the doors and windows, allegedly because Dupuy's workers had failed to apply backer rod to 90% of the openings around the windows and doors before caulking and finishing them with stucco.[1] McMath called on Dupuy to correct the problem; after he tried and failed to fix the leaks, McMath hired another company to make the repairs. In addition to repair costs, McMath incurred delay damages due to the year-long attempts to solve the problem. Fortunately, when McMath realized the building was not waterproof, he held off on finishing the interiors, so there was no damage to the condominium units as a result of the leaks. McMath sued Dupuy and Colony; Colony filed a motion for summary judgment, claiming its policy did not cover the problems alleged by McMath. The evidence submitted in connection with the motion and opposition consisted of the petition, a copy of the policy, and the depositions of Glen Dupuy and Don McMath, the president and owner of McMath.

Colony claimed under the facts of this case, there was no "occurrence." The policy defines "occurrence" as an "accident, including continuous or repeated exposure *680 to substantially the same general harmful conditions." Colony further claimed that even if there had been an "occurrence," certain exclusions in the policy were applicable. In Exclusion J(5), coverage is excluded for property damage to real property on which the insured is working, if the damage arises out of those operations; Exclusion J(6) excludes damage to property that must be restored, repaired, or replaced because of improper workmanship. However, the policy further states that Exclusion J(6) does not apply to property damage included in the "products-completed operations hazard."[2] Products-completed operations hazard coverage is for property damage "arising out of `your work' ... when all of the work called for in your contract has been completed," even if the work may need some "correction, repair, or replacement." "Your work" means "work or operations performed by you or on your behalf" and "materials ... furnished in connection with such work or operations." Other provisions exclude property damage to "your product" (Exclusion K) and to "your work" arising out of it or any part of it and included in the "products-completed operations hazard" unless the damaged work or the work out of which the damage arises was performed by a subcontractor (Exclusion L). Exclusion N excludes damages claimed for any loss, cost, or expense for repair or replacement of "your product," "your work," or "impaired property," if such product, work, or property is "withdrawn or recalled" from use "because of a known or suspected defect, deficiency, [or] inadequacy" in it.

After considering the evidence, the trial court granted the motion and dismissed McMath's claims against Colony. McMath appealed, claiming the trial court erred: in failing to recognize that Dupuy's purchase of products-completed operations hazard coverage obviated the need to find there was an "occurrence"; in determining there was no "occurrence"; in failing to resolve ambiguities in the policy in favor of coverage; in finding Exclusion J(5) applied, although the property damage occurred after completion of Dupuy's performance; in determining Exclusion J(6) applied, although Dupuy had purchased "products-completed operations hazard" coverage and the exclusion stated it was inapplicable under this circumstance; in determining that Exclusion K applied to exclude damage to "your product," despite the policy specification that "your product" does not include real property; in failing to recognize there were genuine issues of material fact in dispute as to the application of Exclusion L; in finding Exclusion L applied, when the work performed by Dupuy had been subcontracted to other people; and in finding Exclusion N applied, when no products, work, or impaired property were recalled or withdrawn.[3]

APPLICABLE LAW

Summary Judgment

An appellate court reviews a district court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A summary *681 judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See LSA-C.C.P. art. 966(E); Bilbo for Basnaw v. Shelter Ins. Co., 96-1476 (La.App. 1st Cir.7/30/97), 698 So.2d 691, 694, writ denied, 97-2198 (La.11/21/97), 703 So.2d 1312. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless 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. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion. See LSA-C.C.P. art. 966(C)(2); Buck's Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. An insurer seeking to avoid coverage through summary judgment must prove some exclusion applies to preclude coverage. Gaylord Chem. Corp. v. ProPump, Inc., 98-2367 (La.App. 1st Cir.2/18/00), 753 So.2d 349, 352.

Insurance Policy Interpretation

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written. LSA-C.C. art.2046; Dunn v. Potomac Ins. Co. of Illinois, 94-2202 (La.App. 1st Cir.6/23/95), 657 So.2d 660, 663. The court should not strain to find ambiguity where none exists. Strickland v. State Farm Ins. Cos., 607 So.2d 769, 772 (La.App. 1st Cir.1992).

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Bluebook (online)
897 So. 2d 677, 2004 WL 2601197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmath-const-co-inc-v-dupuy-lactapp-2004.