Opera Boats, Inc. v. Continental Underwriters, Ltd.

618 So. 2d 1081, 1993 La. App. LEXIS 1571, 1993 WL 146216
CourtLouisiana Court of Appeal
DecidedApril 23, 1993
Docket92 CA 0042
StatusPublished
Cited by7 cases

This text of 618 So. 2d 1081 (Opera Boats, Inc. v. Continental Underwriters, Ltd.) 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
Opera Boats, Inc. v. Continental Underwriters, Ltd., 618 So. 2d 1081, 1993 La. App. LEXIS 1571, 1993 WL 146216 (La. Ct. App. 1993).

Opinion

618 So.2d 1081 (1993)

OPERA BOATS, INC. and Greycas, Inc.
v.
CONTINENTAL UNDERWRITERS, LIMITED, and Powell Insurance, Inc.

No. 92 CA 0042.

Court of Appeal of Louisiana, First Circuit.

April 23, 1993.
Rehearing Denied June 16, 1993.

*1082 William A. Porteous, III, New Orleans, for plaintiff-appellant.

Jack Alltmont, New Orleans, for Powell.

*1083 Lawrence E. Abbott, New Orleans, for Continental.

Before CARTER, LeBLANC and PITCHER, JJ.

LeBLANC, Judge.

Appellants, Greycas, Inc. and Opera Boats, Inc., appeal two summary judgments dismissing their claims against Powell Insurance Agency, Inc. and Continental Underwriters, Ltd., respectively, for failure to procure insurance coverage requested by plaintiffs on two vessels.

On approximately February 17, 1986, two vessels owned by Opera Boats, the M/V Carmen and the M/V Charlie K, disappeared from their dock under unexplained circumstances. At that time, Greycas was mortgagee of the M/V Charlie K. Although a policy of marine hull insurance covering the two vessels was in effect, issued by La Reunion Francais, with Opera Boats and Greycas as the named assureds, the circumstances surrounding the loss of the vessels did not fall within any of the risks listed in the named perils clause of the policy.[1] Furthermore, the policy did not provide breach of warranty coverage, which plaintiffs allege would have provided protection for the loss of the vessels under the circumstances.[2] The lack of breach of warranty coverage lies at the center of the present suit.

On June 15, 1989, plaintiffs filed the present suit against defendants on the basis that defendants breached their duty to plaintiffs in failing to procure a breach of warranty endorsement to the marine hull policy issued by La Reunion Francais. Subsequently, Powell filed a motion for summary judgment, arguing it had breached no duty to plaintiffs. After hearing, the trial court issued written reasons for judgment on August 1, 1991, finding that, although Powell was unsuccessful in obtaining breach of warranty coverage, it used reasonable diligence in attempting to do so and promptly notified plaintiffs of its failure to obtain this coverage. The court further found that Powell's actions did not warrant an assumption by plaintiffs that they had such coverage. Accordingly, the court rendered summary judgment on August 16, 1991, dismissing plaintiffs' claims against Powell.

Thereafter, Continental filed a similar motion for summary judgment which, after another hearing, was granted by the trial court on October 2, 1991. Plaintiffs have now appealed these two judgments.

FACTS[3]

In March of 1985, Opera Boats requested that its insurance agent, Powell, obtain a renewal policy of marine hull insurance on the M/V Carmen and the M/V Charlie K. *1084 Powell had been Opera Boats' insurance agent for several years and had previously obtained several marine hull policies for Opera Boats which included breach of warranty endorsements. In obtaining this policy, which became effective March 29, 1985, Powell dealt with Continental, which, through an intermediate broker, procured the above-mentioned policy of insurance with La Reunion Francais. In addition to Opera Boats, the policy named Greycas as loss-payee with respect to the M/V Charlie K.

Although the request for a rate quotation from Powell to Continental did not list breach of warranty coverage, Powell maintains that it was told by one of Continental's employees during a telephone discussion that this coverage was included in the policy at the rate quoted, i.e., at no additional charge. Powell thereafter issued a certificate of insurance on April 10, 1985, upon Greycas' request, which indicated that the marine hull policy included breach of warranty coverage in the amount of $180,000 on each vessel. However, a certificate of insurance issued by Continental did not indicate that breach of warranty coverage was included. The policy itself makes no reference to breach of warranty coverage.

In May, Greycas wrote a letter to Powell regarding the certificate issued by it, stating that the certificate "does not indicate the policy conditions required by the contract". Samples of the conditions required by Greycas, including a breach of warranty endorsement, were attached, and Greycas requested that Powell obtain the addition of these conditions to the policy. Accordingly, Powell subsequently wrote a letter to Continental, dated June 14, 1985, requesting several changes to the policy, specifically including the addition of a breach of warranty endorsement. Copies of this letter were sent to Opera Boat and Greycas. By letter dated June 27, 1985, Continental responded that breach of warranty coverage could be issued, but that it needed to know the amount of coverage required on each vessel, and that the premium would be based on that amount.

On September 16, 1985, Greycas wrote to Powell inquiring when it could expect to receive the endorsements, which included the breach of warranty endorsement, requested by Powell in its June 14, 1985 letter to Continental. Powell replied by letter on September 24, 1985, that Opera Boats owed it over $8,000.00 in premiums[4], and it was not in a position to do anything which would increase the insured's premium until that amount was paid.

In support of its motion for summary judgment, Powell also filed portions of the deposition of Ms. Debbie Inman, an employee of Greycas who worked on the Opera Boats account. Ms. Inman acknowledged in this deposition that she was aware that Continental had refused to add breach of warranty coverage unless an additional premium was paid for it in advance. Although she could not recall the exact time she became aware of Continental's position, she indicated it was sometime between August, 1985 and the latter part of September of that year. According to Ms. Inman, Greycas' response to the situation was that it would not pay premiums for its customers. She further indicated that, to the best of her recollection, an employee in another department of Greycas (she could not recall the individual), was asked to notify Opera Boats that it would have to pay the additional premium.

On December 27, 1985, Powell sent a letter to Continental, with copies to Opera Boats and Greycas, again requesting that a breach of warrant endorsement be added to the policy. Continental responded by letter, dated January 2, 1986, that it had not provided the endorsement because it did not know who would be responsible for the premium. The letter also noted that there was apparently a prior misunderstanding between Continental and Powell regarding whether breach of warranty coverage would be provided at no additional charge.

*1085 On January 14, 1986, Powell wrote a letter to Continental advising it that Greycas had been notified that there would be no changes in the policy at that time "due to the balance".

Approximately one month later, on February 17, 1986, the M/V Charlie K and the M/V Carmen disappeared from their docks.

ASSIGNMENTS OF ERRORS

Plaintiffs allege the trial court erred in the following respects.

1. The trial court erred in granting summary judgment in favor of Powell Insurance Agency despite a genuine dispute as to whether:
A. Powell used due diligence to obtain breach of warranty coverage for the two vessels and properly kept its clients advised, and
B.

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Bluebook (online)
618 So. 2d 1081, 1993 La. App. LEXIS 1571, 1993 WL 146216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/opera-boats-inc-v-continental-underwriters-ltd-lactapp-1993.