Orleans Parish School Bd. v. Scheyd, Inc.

673 So. 2d 274, 95 La.App. 4 Cir. 2653, 1996 La. App. LEXIS 715, 1996 WL 203174
CourtLouisiana Court of Appeal
DecidedApril 24, 1996
Docket95-CA-2653
StatusPublished
Cited by17 cases

This text of 673 So. 2d 274 (Orleans Parish School Bd. v. Scheyd, Inc.) 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
Orleans Parish School Bd. v. Scheyd, Inc., 673 So. 2d 274, 95 La.App. 4 Cir. 2653, 1996 La. App. LEXIS 715, 1996 WL 203174 (La. Ct. App. 1996).

Opinion

673 So.2d 274 (1996)

ORLEANS PARISH SCHOOL BOARD
v.
SCHEYD, INC., et al.

No. 95-CA-2653.

Court of Appeal of Louisiana, Fourth Circuit.

April 24, 1996.
Rehearing Denied May 31, 1996.

*275 Robert M. Rosenberg and Larry C. Becnel, Polack, Rosenberg & Endom, New Orleans, for appellee, Orleans Parish School Board.

J. Michael Johnson and Gerald A. Melchiode, Galloway, Johnson, Tompkins & Burr, New Orleans, for appellee, Hammond Construction, A Division of Scheyd, Inc.

William W. Hall, Metairie, for appellee, Hudson Mechanical, Inc.

Darryl J. Foster, Lemle & Kelleher, New Orleans, for appellant, United States Fidelity & Guaranty Co.

Before LOBRANO, PLOTKIN and MURRAY, JJ.

LOBRANO, Judge.

United States Fidelity and Guaranty Company (USF & G) appeals a trial court judgment which denied its motion for summary judgment on coverage issues and granted its insured's motion for summary judgment requiring USF & G to provide a defense in the above matter.

Initially we observe that the denial of a motion for summary judgment is an interlocutory decree which is not appealable absent a showing of irreparable injury. La. C.C.Pro. art. 2083. USF & G has not shown how it has been or will be irreparably harmed because of the trial court's rejection of its motion for summary judgment, especially in view of the fact that if it must defend its insured, it will remain in the litigation.

However, in Lawson v. Straus, 95-1017, 95-1028 (La.App. 4th Cir. 8/23/95), 660 So.2d 892, writ denied 95-2271 (La. 12/8/95), 664 So.2d 422 and 95-2325 (La. 12/8/95), 664 So.2d 423, we held that a partial summary judgment which requires an insurer to defend its insured is a final appealable judgment. Although the concurring judge in that case questioned the rationale supporting the majority's reasoning and invited the Supreme Court to revisit the issue, that court declined to do so. See, Plotkin, J. concurring at 660 So.2d 897. See also, Edwards v. Daugherty, 95-702 (La.App. 3rd Cir, 8/16/95), 663 So.2d 102 where the court noted the *276 "intolerable problems of multiple appeals and piecemeal litigation" where partial summary judgments are rendered in connection with issues of coverage and duty to defend.

In view of our holding in Lawson, the partial summary judgment which requires USF & G to defend its insured is a final judgment, subject to direct appeal. And, although we will not consider USF & G's appeal of the denial of its motion for summary judgment, since the issue of duty to defend necessarily requires consideration of coverage issues, we will address USF & G's coverage arguments only to the extent necessary to consider their duty to defend.

FACTS:[1]

The instant litigation arises out of the construction of Robert Moton Elementary School. The school was completed in 1987. Hammond Construction, a division of Scheyd, Inc. (Hammond) was the general contractor, and Hudson Mechanical was the plumbing subcontractor. USF & G issued a Comprehensive General Liability Policy to Hudson for the policy period February 4, 1985 to February 4, 1986.

Sometime in 1991, the Orleans Parish School Board, owner of the building, became aware of possible plumbing problems. Drain stoppages and sewer odors became prevalent. As a result of various investigative work by the School Board, including excavation, it was determined that 90% of the sanitary sewer piping was disconnected from the vertical risers in the slab. In August of 1993, the School Board filed the instant suit against Hammond and Hudson. The Board seeks to hold Hammond and Hudson liable for the faulty installation of the plumbing and plumbing supports.[2] Hammond cross-claimed against its sub-contractor, Hudson, and third partied USF & G, Hudson's liability insurer. Hudson also third partied USF & G in its capacity as Hudson's comprehensive liability insurer for the period February 4, 1985 to February 4, 1986.[3] USF & G denied coverage, refused to defend Hudson and moved for summary judgment. Hammond, the School Board and Hudson all opposed USF & G's motion. Hudson filed a cross motion for summary judgment on the duty to defend issue.

As we noted earlier in this opinion, the appeal of the grant of Hudson's motion is properly before us, and, to the extent necessary to determine the issue of duty to defend, we will address USF & G's coverage arguments. However, there is no irreparable harm in the denial of USF & G's summary judgment on the coverage issues, and thus, we decline to exercise our supervisory jurisdiction and, ex proprio motu, we dismiss USG & G's appeal on that issue.

DUTY TO DEFEND:

In Micelotti v. Karno, 542 So.2d 734, 736 (La.App. 4th Cir.1989), we set forth the guiding precepts when determining if an insurer has a duty to defend. We stated:

A liability insurer has a duty to defend its insured against claims by a third party apart from its duty to indemnify its insured. Bourque v. Lehmann Lathe, Inc., 476 So.2d 1129, 1131 (La.App. 3rd Cir. 1985), writ den. 479 So.2d 362 (La.1985). An insurer's obligation to defend suits against its insured is broader than its liability for damage claims. American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253, 259 (1969); Hanover Ins. Co. v. Highlands Ins. Co., 511 So.2d 1296, 1297 (La.App. 2nd Cir.1987); Bourque, supra at 1131. The insurer's duty to defend suits brought against its insured is determined by the allegations of the petition, not by the insurer's interpretation of what liability may be covered by the policy. American Home Assurance, supra 230 So.2d at 259; Hanover, supra at 1297. The insurer is obligated to furnish a defense unless the petition unambiguously excludes coverage. Id. The insurer is obligated to defend the insured in an action where the pleadings allege coverage, *277 even though in fact there is no coverage. Id.

The allegations of the petition filed by the School Board are to be liberally interpreted to determine if they assert grounds that bring the claim within USF & G's duty to defend Hudson. Ellis v. Transcontinental, 619 So.2d 1130 (La.App. 4th Cir.1993), writ denied, 625 So.2d 1043 (La.1993). The pertinent portions of that petition allege the following facts:

1) Hammond sub-contracted with Hudson to construct and install the plumbing, drain, drainage and sewerage systems at the Moton School.
2) The drainage, plumbing and sewer systems have not functioned properly because they were not constructed in accordance with contract documents or otherwise in a workmanlike manner. Specifically the vertical risers (hangers) had become disconnected from the slab causing the pipes to become disconnected. In addition, contrary to the contract requirements, the required excavation below the pipes was not undertaken. Because of these deficiencies the sewer and drain piping below the school collapsed or failed.
3) As a result, the School Board sustained extensive repair damage, as well as other damages, including costs for meal deliveries to the school, temporary restroom facilities and overhead cost to the School Board.
4) All defendants are alleged to be liable in solido for the inadequate, defective drainage and sewer systems caused by their failure to perform their contractual and implied-in-law obligations.

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673 So. 2d 274, 95 La.App. 4 Cir. 2653, 1996 La. App. LEXIS 715, 1996 WL 203174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orleans-parish-school-bd-v-scheyd-inc-lactapp-1996.