Mossy Motors, Inc. v. Cameras America

898 So. 2d 602, 2005 La. App. LEXIS 903, 2005 WL 775765
CourtLouisiana Court of Appeal
DecidedMarch 2, 2005
Docket2004-CA-0726
StatusPublished
Cited by36 cases

This text of 898 So. 2d 602 (Mossy Motors, Inc. v. Cameras America) 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
Mossy Motors, Inc. v. Cameras America, 898 So. 2d 602, 2005 La. App. LEXIS 903, 2005 WL 775765 (La. Ct. App. 2005).

Opinion

898 So.2d 602 (2005)

MOSSY MOTORS, INC.
v.
CAMERAS AMERICA.

No. 2004-CA-0726.

Court of Appeal of Louisiana, Fourth Circuit.

March 2, 2005.
Rehearing Denied April 15, 2005.

*604 Dennis J. Phayer, Burglass & Tankersley, L.L.C., Metairie, LA, for Appellant, Canal Indemnity Company.

Jerry B. Jordan, Jordan Law Firm, and Charles M. Raymond, Taggart, Morton, Ogden, Staub, Rougelot & O'Brien, L.L.C., New Orleans, LA, for Defendant/Appellee, Cameras America.

Joseph E. Lee III, Geiger, Laborde & Laperouse, L.L.C., New Orleans, LA, for Plaintiff/Appellee.

(Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD).

JAMES F. McKAY III, Judge.

The appellant, Canal Indemnity Company (Canal), appeals the judgment of the trial court granting a joint motion for summary judgment filed by Mossy Motors Inc. (Mossy), and Cameras America L.L.C. (Cameras) and finding that Canal has a duty to defend the allegations in the petition for damages filed by Mossy Motors, Inc., by providing conflict counsel to Cameras America, L.L.C., Boyd Baker, and Sarah Baker (hereafter collectively referred to as Cameras).

FACTS AND PROCEDURAL HISTORY

The instant matter arises out of the underlying principal demand in which Mossy Motors, Inc. sued Cameras, alleging that Mossy entered into an agreement with Cameras to install and service surveillance video equipment at 1331 South Broad Street, the location of the Mossy dealership. This agreement was entered into on June 30, 2000. The agreement was a five-year capital lease of video surveillance equipment, which included a monitoring service to protect the vehicles on the property. The monitoring fee was for $3,924.00 per quarter and $932.97 per month for the lease of the cameras. Mossy alleges that as part of the monitoring service agreement Cameras is supposed to continuously monitor the premises after the dealership closes and report any breach or suspicious activities to the New Orleans Police Department and/or Mossy.

On or about October 26-27, 2001, a series of burglaries occurred at the Mossy property that included the stealing of nine vehicles and the damaging of the fence. Mossy asserts that on this particular night Cameras' failure to properly monitor the premises resulted in the accomplishment of these thefts. On December 14, 2001, Mossy filed a petition for damages against Cameras in Civil District Court for the Parish of Orleans, State of Louisiana in Case No.XXXX-XXXXX, Division "K" Section 14. Subsequent to this suit being filed Cameras, who was served via the Louisiana Long Arm Statute, alleged that it sent the suit documents to a Mr. Dearie, the attorney for Canal. No court appearance was made on Cameras' behalf, which resulted in Mossy taking a preliminary default against Cameras on March 5, 2002. A default judgment was entered into the record on March 22, 2002. Cameras then sought an explanation from Mr. Dearie but none was obtained. Cameras then contacted and retained private counsel for the defense of the present lawsuit. Cameras' counsel sought and successfully obtained a judgment vacating the default judgment after appealing the trial court's denial of the motion to vacate. This Court reversed the trial court's judgment in case No.XXXX-XXXX. Following this action Cameras filed a suit in the United States District Court for the Eastern District of Louisiana in a civil action in case No. 03-678, Section "C" in Boyd Baker, ET AL v. Harold Dearie, ET AL., seeking damages against Harold Dearie for legal malpractice, and negligence against Regina Richard, the Burghardt *605 Insurance Agency and Canal. Canal filed an answer in the federal litigation. On August 29, 2003, the federal district court denied Canal's motion for summary judgment finding that it had a duty to defend Cameras.[1] Despite the federal suit being filed, Cameras continued to seek and demand defense to the Louisiana litigation from Canal's counsel. Canal's counsel advised Cameras that the policy only covered such things as negligent installation and repair. On February 5, 2004, Mossy filed its first supplemental and amending petition naming Canal as a defendant and alleging coverage for Cameras. On March 5, 2004, the trial court granted Mossy and Cameras' joint motion for summary judgment finding a duty to defend.

STANDARD OF REVIEW

In Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup'rs of Louisiana State University, 591 So.2d 342 (La.1991). 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 as to material fact, and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B). This article was amended in 1996 to provide that "summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action...." La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). 99-2181, 99-2257, p. 7, 755 So.2d at 230-31.

See also Shelton v. Standard/700 Associates, XXXX-XXXX (La.10/16/01), 798 So.2d 60.

ASSIGNMENT OF ERROR

Canal argues that the trial court erred in granting Cameras' motion for summary judgment and finding that it had a duty to defend the allegations against the insured, which fall outside the scope of the coverage, afforded by the policy.

INTERPRETATION OF INSURANCE CONTRACTS

An insurance policy is a contract between the parties, and should be construed employing the general rules of interpretation of contracts. Blackburn v. National Union Fire Ins. Co. of Pittsburgh, 00-2668, pp. 5-6 (La.4/3/01), 784 So.2d 637, 641. Words in an insurance policy must therefore be given their generally prevailing meaning, unless they have acquired a technical meaning, in which case the technical meaning applies. La. C.C. art.2047; Succession of Fannaly v. Lafayette Ins. Co., 01-1355, p. 3 (La.1/15/02), 805 So.2d 1134, 1137. An insurance policy is construed as a whole, and each provision in the policy must be interpreted in light of the other provisions. *606 Id., 01-1355 at pp. 3-4, 805 So.2d at 1137. If an ambiguity remains after applying the general rules of contractual interpretation, the ambiguous policy provision is construed against the insurer who furnished the policy's text and in favor of the insured. Id., 01-1355, at p. 4, 805 So.2d at 1138.

An insurance 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. Magnon v. Collins, 98-2822, p. 7 (La.7/7/99), 739 So.2d 191, 196. Likewise, a court should not strain to find ambiguity in a policy where none exists. Gaylord Chemical Corp. v. Propump, Inc., 98-2367, at p. 4, (La.App. 1 Cir. 2/18/2000) 753 So.2d 349, 352.

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898 So. 2d 602, 2005 La. App. LEXIS 903, 2005 WL 775765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mossy-motors-inc-v-cameras-america-lactapp-2005.