Serigne v. Wildey
This text of 612 So. 2d 155 (Serigne v. Wildey) 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.
Opinion
Joan Martinez, Wife of/and Lionel R. SERIGNE, d/b/a Serigne's Marina
v.
Douglas M. WILDEY, Sr., Concrete Bulkheads, Inc., Shoreline Specialties, Inc., Pelican State Mutual Ins. Co., Keith Tassin and Darlene Tassin.
Court of Appeal of Louisiana, Fifth Circuit.
Robert G. Creely, Gretna, for plaintiffs-appellees.
*156 Vance E. Ellefson, Valerie A. Young, Baline A. Moore, Metairie, Daniel L. Morrow, Gretna, Anthony J. Livacarri, Jr., New Orleans, J. Wayne Mumphrey, George N. Bischof, Jr., Chalmette, for defendants-appellees.
Carl J. Hebert, Mark A. Myers, Metairie, for defendant-appellant.
Before GAUDIN, GOTHARD and CANNELLA, JJ.
GAUDIN, Judge.
Mr. and Mrs. Lionel Serigne, d/b/a Serigne's Marina, contracted with Shoreline Specialties, Inc. for construction of a concrete marina, including a dock, boat slips, sheds, etc., on Bayou Terre Aux Beoufs near Delacroix in St. Bernard Parish. When nearly completed, the entire structure collapsed into the bayou.
The Serignes filed suit in the 24th Judicial District Court, naming among the defendants the Pelican State Mutual Insurance Company, which had issued a commercial general liability policy to Shoreline Specialties.
A district court judgment found (1) that the marina's slipping into the bayou was an occurrence within the scope and meaning of the policy and (2) that exclusions were not applicable. We affirm, considering the policy's wording and the unique facts and circumstances of this case.
The amount of the district court award to the Serignes, $251,313.00, was not contested nor were other parts of the May 23, 1991 judgment. At the conclusion of a five-day jury trial, the trial judge directed a verdict in favor of insurance coverage. The jury then awarded $264,540.00 to the Serignes but found them five per cent at fault. Shoreline Specialties was found 95 per cent responsible.
Louisiana jurisprudence and the Civil Code are clear concerning coverage and policy exclusions. Insurance policies must be liberally construed in favor of coverage, and provisions susceptible of different meanings have to be interpreted with a meaning that renders coverage effective. Any ambiguity must be construed against the insurance company and in favor of reasonable construction affording coverage. See RPM Pizza, Inc. v. Automobile Cas. Ins. Co., 601 So.2d 1366 (La.1992); and LSA-C.C. art. 2049, which states:
"A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective."
Testimony in the instant case indicates that the heavy concrete marina fell into the water at least in part because erroneously placed land fill eroded, placing excess pressure on the bulkhead. Other testimony implied that Shoreline Specialties did not properly construct the tie-back system and that the company neither strengthened nor secured the pilings adequately. Further testimony charges Shoreline Specialties with failing to consider tidal fluctuation. In any event, Pelican argues that faulty construction and defective workmanship were not accidental and therefore not an occurrence within confines of the policy.
In the "Bodily Injury and Property Damage Liability" section of the policy, it is stated that the bodily injury or property damage must be caused by an "occurrence." An occurrence is described later in the policy as follows:
"Occurrence means an accident, including continuous or repeated exposure to substantially the same general harmful conditions."
Black's Law Dictionary, at page 30, says that in its most commonly accepted meaning, or in its ordinary or popular sense, an accident may be defined as a fortuitous circumstance event or happening, an event which under the circumstances is unusual or unexpected. An accident is further described as a mishap, a sudden and unexpected event taking place without expectation, or as "... something unforeseen, unexpected, unusual, extraordinary or phenomenal, taking place not according to the usual course of things or events, out of range of ordinary calculations; that which exists or occurs abnormally, or an uncommon occurrence; the word may be employed as denoting a calamity, *157 casualty, catastrophe, disaster, an undesirable or unfortunate happening ..."
Under this broad definition, the marina's fall into the bayou was clearly an accident, and consequently an insured-against occurrence. The trial judge so found, remarking from the bench that "... this policy is at best overly confusing, absolutely ambiguous..."
Pelican cites several Louisiana cases suggestive of non-coverage, including Fredeman Shipyard, Inc. v. Weldon Miller Contractors, Inc., 497 So.2d 370 (La.App. 3 Cir.1986); Bacon v. Diamond Motors, Inc., 424 So.2d 1155 (La.App. 1 Cir.1982), writs denied at 429 So.2d 131 (La.1983); Vitenas v. Centanni, 381 So.2d 531 (La.App. 4 Cir. 1980); Breaux v. St. Paul Fire and Marine Ins. Co., 345 So.2d 204 (La.App. 3 Cir.1977); Vobill Homes, Inc. v. Hartford Accident & Indemnity Co., 179 So.2d 496 (La.App. 3 Cir. 1965). In none of these cases, however, does the insurance cover an occurrence which is described in the policy as an accident. In Fredeman, for example, the general liability policy specifically covered damage to structures due to or caused by grading of land, excavating, burrowing, filling, backfilling, tunnelling, pile driving, cofferdam or caisson work, moving, shoring, underpinning, raising or demolition of any building or structure or rebuilding of any structural support thereof.
The Pelican policy insuring against occurrences described as accidental is unique. Almost all of the reported insurance cases in the state deal with much more precisely stated events and possible happenings, real or potential, covered by the policy. In Lombard v. Sewerage and Water Board of New Orleans et al, 284 So.2d 905 (La.1973), however, the Supreme Court of Louisiana, in a case involving 119 plaintiffs seeking damages caused by construction and installation of a drainage canal, found coverage although there was no exact statement of just what the applicable policy insured against. In that insurance policy, the word "occurrence" was substituted for "accident." The Court said at page 915 that the intention manifested by this was to broaden coverage. The Court then went on to say that:
"As a rational matter, however, it can hardly be said that this construction project lasting more than one year is a single `occurrence' within the contemplation of the quoted clause. Rather, we think it is more logical to view this project as a series of `occurrences' resulting in damages during the course of this prolonged undertaking. The word `occurrence' as used in the policy must be construed from the point of view of the many persons whose property was damaged. As to each of these plaintiffs, the cumulated activities causing damage should be considered as one occurrence, though the circumstances causing damage consist of a continuous or repeated exposure to conditions resulting in damage arising out of such exposure. Thus, when the separate property of each plaintiff was damaged by a series of events, one occurrence was involved insofar as each property owner was concerned."
Likewise, the occurrences which caused the Serignes' marina to fail occurred over an extended period of time.
The exclusions relied on by Pelican are in various sections of the Serigne policy.
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612 So. 2d 155, 1992 WL 381788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/serigne-v-wildey-lactapp-1992.