Shane Reaux v. Mr. and Mrs. Casey Joseph Moresi

• Court: Louisiana Court of Appeal
• Decided: August 28, 2013
• Docket: CW-0013-0510
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

13-510

SHANE REAUX

VERSUS

MR. AND MRS. CASEY JOSEPH MORESI

**********

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 119,516, DIV. E HONORABLE KEITH J. COMEAUX, DISTRICT JUDGE

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John D. Saunders, Judges.

Saunders, J., concurs with additional written reasons.

WRIT GRANTED AND MADE PEREMPTORY.

J. Christian Lewis Glenn J. Armentor The Glen Armentor Law Corporation 300 Stewart Street Lafayette, LA 70501 Telephone: (337) 233-1471 COUNSEL FOR: Plaintiff/Respondent – Shane Reaux

Dennis R. Stevens Gibbens and Stevens 222 West St. Peter Street New Iberia, LA 70560 Telephone: (337) 367-8451 COUNSEL FOR: Defendants/Respondents – Mr. and Mrs. Casey Joseph Moresi Matthew D. Monson Donald J. Latuso, Jr. Laura H. Abel The Monson Law Firm, LLC 900 W. Causeway Approach – Suite A Mandeville, LA 70471 Telephone: (985) 778-0678 COUNSEL FOR: Defendant/Relator – Southern Fidelity Insurance Company THIBODEAUX, Chief Judge.

Plaintiff, Shane Reaux, filed this suit against Mr. and Mrs. Casey

Moresi (“Moresis”), for an automobile accident that occurred when Reaux swerved

his car to avoid hitting the Moresis’ dog in front of their house. Reaux added

Defendant, Southern Fidelity Insurance Co. (“Southern Fidelity”), as the Moresis’

homeowners insurance provider. Southern Fidelity filed a Motion for Summary

Judgment asking to be dismissed from the case because the insurance policy it has

with the Moresis contains an Animal Liability Exclusion, which it contended

excluded this accident from coverage. The Moresis claim that the Exclusion is not

valid because it is not signed.

The trial court denied the motion and Southern Fidelity filed an

application for a supervisory writ with this court. We disagree with the trial court

and reverse its decision. We find there is no case law or statute requiring the

Animal Liability Exclusion be signed to be valid. The Exclusion, therefore, was

attached to the Moresis’ policy, and clearly and unambiguously excludes Reaux’s

claims from coverage.

I.

ISSUE

We will decide whether the trial court erred in denying summary

judgment to Southern Fidelity by concluding that the Animal Liability Exclusion

was not a part of the policy. II.

FACTS AND PROCEDURAL HISTORY

Plaintiff alleges that he sustained several injuries following a car

accident in which he swerved to avoid hitting the Moresis’ unrestrained dog in the

road. He filed suit against the Moresis and then joined Southern Fidelity as their

insurer. The homeowner’s insurance policy between the Moresis and Southern

Fidelity contains an Animal Liability Exclusion, excluding all coverage relating to

damages caused by an animal. Reaux and the Moresis contend that the exclusion

is not valid because the signature line on the policy lacks a signature. Southern

Fidelity filed a Motion for Summary Judgment in the trial court, arguing that the

lack of a signature does not nullify the exclusion. The trial court denied the

motion, and agreed with the Moresis and Reaux that the absence of a signature

invalidated the exclusion.

III.

LAW AND DISCUSSION

Standard of Review

We review a grant of summary judgment de novo “using the same

criteria that govern the trial court’s consideration of whether summary judgment is

appropriate, i.e., whether there is a genuine issue of material fact and whether the

mover is entitled to judgment as a matter of law.” Supreme Servs. and Specialty

Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638.

Once the mover has made a prima facie case that the motion should be granted, the

non-mover must then present evidence sufficient to show a genuine issue of

material fact. La.Civ.Code art. 966(C)(2); Simien v. Med. Protective Co., 08-1185

2 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-1488 (La. 10/2/09), 18

So.3d 117. If the non-mover fails to present some evidence that he might be able

to meet his burden of proof at trial, the motion should be granted. Id. Moreover,

the interpretation of a contract is a question of law which is reviewed de novo.

Gutierrez v. Baldridge, 12-138 (La.App. 3 Cir. 10/3/12), 105 So.3d 156.

Discussion

Animal Liability Exclusion

Defendant argues that the trial court erred by not granting summary

judgment in its favor because the Animal Liability Exclusion contained in the

insurance policy was part of the policy, and is applicable here. We agree. The

exclusion states:

Your policy is changed to read under COVERAGE L – PERSONAL LIABILITY we will NOT cover any bodily injury or damages caused by any animal owned or kept by any insured, including the failure to restrain or enclose the animal, located at the insured location. This exclusion applies whether or not bodily injury or damage occurs on your premises or any other location. All other provisions and exclusions apply.

Under COVERAGE M – MEDICAL PAYMENTS TO OTHERS we will NOT cover bodily injury or medical expenses caused by any animal owned or kept by any insured, including the failure to restrain or enclose the animal, located at the insured location. This exclusion applies whether or not the injury occurs on your premises or any other location. All other provisions and exclusions apply.

Under DAMAGE TO PROPERTY OF OTHERS SECTION we will NOT cover property damage caused by any animal owned or kept by any insured, including the failure to restrain or enclose the animal, located at the insured location. This exclusion applies, whether or not the damage occurs on your premises or any other location. All other provisions and exclusions apply.

3 An insurance policy is “a contract between the parties and should be

construed by using the general rules of interpretation of contracts.” Louisiana Ins.

Guar. Ass’n v. Interstate Fire & Cas. Co., 93-911 (La. 1/14/94), 630 So.2d 759,

763. Louisiana Civil Code Article 2046 governs contract interpretation and states

that when “the words of a contract are clear and explicit and lead to no absurd

consequences, no further interpretation may be made in search of the parties’

intent.” In this case, the exclusion is clear, unambiguous, and applicable to these

circumstances. Reaux was personally injured when he swerved his car to avoid

hitting the Moresis’ dog. He is seeking damages for medical payments, personal

injury, and property damage as a result of the accident. The exclusion clearly

applies.

The only real issue is whether the exclusion was made part of the

policy. The Moresis claim that although they were in possession of the exclusion,

it was not part of the policy because there is a signature line, but no signature. The

trial court agreed with this, and treated the exclusion in the same way it would treat

an Uninsured Motorist (UM) clause in an auto insurance policy, which must be

signed to be valid. Louisiana, however, has a statute that specifically applies to

UM clauses, La.R.S. 22:1295, and requires them to be signed by the insured.

There is no such statute applicable to animal liability exclusions.

We can find no law specifying that this exclusion must be signed to be

valid. In fact, we find the opposite to be true. Under the “Entire Contract

Doctrine,” La.R.S. 22:867, an agreement modifying the coverage of an insurance

contract is only valid if “it is in writing and physically made a part of the policy.”

Any exclusion “shall be deemed to be physically made a part of a policy . . . within

the meaning of [the] Section, whenever such written agreement makes reference to

4 such policy . . . and is sent to the holder of such policy.” La.R.S. 22:867(C).

According to the statute, therefore, as long as the exclusion makes reference to the

policy, is in writing, and in the possession of the insured, it is physically made a

part of the policy. In this case, the exclusion was written, makes reference to the

Moresis’ policy, and was physically attached to the policy.

In Piligra v. America’s Best Value Inn, 10-254 (La.App. 3 Cir.

10/6/10), 49 So.3d 479, this court considered the validity of policy exclusions and

endorsements that contained a signature line, but were not signed. In that case, we

held that the endorsements and exclusions at issue were enforceable even though

they were not signed because they were included on the declarations page of the

policy and were physically attached to the policy. Id. Other courts in this state

have interpreted La.R.S. 22:867 similarly and have likewise held that exclusions

can be made part of the policy even if not signed. See, e.g. Boudreaux v. Siarc,

Inc., 97-1067 (La.App. 5 Cir. 4/15/98), 714 So.2d 49, writ denied, 98-1556 (La.

9/18/98). In this case, the Animal Liability Exclusion was attached to the policy

and listed under “Forms and Endorsements” on the Declarations Page of the

Southern Fidelity policy. The exclusion, therefore, is made part of the policy.

The Moresis’ are unclear in their brief as to whether they are asserting

only that the exclusion is invalid, or, alternatively, that they were unaware of the

exclusion because it was not signed. Neither argument is persuasive. The

exclusion is valid even if it lacks a signature, as expressed above. Further, the

Moresis cannot claim ignorance of the exclusion, since “[a]n insured is responsible

for reading its policy and is presumed to know its contents.” Piligra, 49 So.3d at

487. We assume, therefore, that the Moresis read and understood their policy

before accepting it. We find that Southern Fidelity has satisfied its burden of proof

5 and there is no genuine issue of material fact. Southern Fidelity is entitled to

judgment as a matter of law.

Duty to Defend

Southern Fidelity also argues that they have no duty to defend the

Moresis against Reaux’s claims because the Moresis are not entitled to coverage.

We agree. An insurer has a duty to defend suits brought against its insured, unless

the policy unambiguously excludes coverage. Ducote v. Cliffs Drilling Co., 624

So.2d 960 (La.App. 3 Cir. 1993). As explained above, we find that the policy

clearly and unambiguously excludes Reaux’s claims from coverage under the

Animal Liability Exclusion. Southern Fidelity has no duty to defend the Moresis

against this claim.

IV.

CONCLUSION

For the reasons above, we reverse the judgment of the trial court and

grant summary judgment to Southern Fidelity Insurance Co.

6 STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

It is axiomatic that “[a]n insured is responsible for reading its policy and is

presumed to know its contents.” Pilgra, 49 So.3d at 487. In my view, the

presence of an unsigned signature line in an attachment raises some ambiguity.

Theoretically, the unsigned signature line could be interpreted as the insured

tacitly rejecting the attachment. Under such circumstances, summary judgment

seems to be inappropriate.

However, in the present case, the exclusion was not only attached to the

policy, but was in fact listed under forms and endorsements on the declarations

page when the insured entered into the policy of insurance. This negates the

possibility of the insured’s tacit rejection of the attachment by not signing it and

makes summary judgment, under these particular circumstances, appropriate.

Accordingly, I respectfully concur.