Survia v. Colley

94 So. 3d 890, 2011 La.App. 4 Cir. 1735, 2012 WL 1744207, 2012 La. App. LEXIS 679
CourtLouisiana Court of Appeal
DecidedMay 16, 2012
DocketNo. 2011-CA-1735
StatusPublished

This text of 94 So. 3d 890 (Survia v. Colley) 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
Survia v. Colley, 94 So. 3d 890, 2011 La.App. 4 Cir. 1735, 2012 WL 1744207, 2012 La. App. LEXIS 679 (La. Ct. App. 2012).

Opinion

DENNIS R. BAGNERIS, SR., Judge.

| iThis is an appeal from a summary judgment rendered in favor of Louisiana [891]*891Citizens Property Insurance Corporation dismissing it as a defendant on the issue of insurance coverage. For the following reasons, we hereby reverse and remand the case for further proceedings.

Facts and Procedural History

On June 20, 2008, Eddie Survia and his wife, Ophelia Survia, filed suit against An-gies M. Colley, Soloman Colley, Jr., Solo-man Colley, Sr., and Nykeisha Weber, for damages as a result of a physical altercation that took place on June 28, 2007. In their petition, plaintiffs allege they sustained damages when defendants committed an unprovoked battery on them while in their driveway. Angies Colley responded to the petition with an answer generally denying the allegations of the petition and also brought a reconventional demand for damages against plaintiffs alleging that she “and her son, Soloman, Jr., were assaulted and then physically attacked by defendants-in-reconvention, Eddie Survia and Ophelia Survia, without provocation whatsoever.” On December 5, 2008, plaintiffs (defendants-in-reconvention) filed an answer to the reconventional demand generally denying the ^allegations in the re-conventional demand and pleading self-defense as an affirmative defense.

On June 25, 2009, plaintiffs amended their petition to include as a defendant Jonathan Fields. On April 15, 2010, plaintiffs filed a second amended and supplemental petition to include as a defendant Louisiana Citizens Property Insurance Corporation (Citizens), the liability insurer of Angies Colley. Jonathan Fields filed an answer denying the allegations made by the plaintiffs on April 21, 2010. Citizens answered the petition admitting it was the carrier of insurance for Angies Colley; however, it alleges that coverage is not afforded pursuant to the “Expected Or Intended Injury” exclusion in the policy. On June 25, 2010, Angies Colley filed an answer to the amended and supplemental petition for damages generally denying the allegations in plaintiffs’ petition and alleged various defenses, which included self-defense and comparative fault.

On June 80, 2011, Citizens filed a motion for summary judgment asserting that the policy of insurance does not provide coverage to the insured, Angies Colley, because it contains an exclusion for bodily injury which is expected or intended by an insured. In support of its motion for summary judgment, Citizens attached the following exhibits: (1) a copy of the insurance policy; (2) the deposition of Angies Colley; and (3) the deposition of Ophelia Suriva. On September 15, 2011, plaintiffs filed an opposition to the motion for summary judgment arguing that there are genuine issues of fact in dispute, especially since it is unclear among the parties who was involved in the altercation as well as how and where the incident occurred. Plaintiffs further argue that because the defendants were all living with Angies Colley at the time of the incident, they are included under the “insured” definition contained within the policy. Plaintiffs also Uargue that the policy does provide possible coverage under the application of use of reasonable force by the insured to protect themselves or their property. In support of their opposition to the motion for summary judgment, plaintiffs attached as exhibits: (1) Nykeisha Weber’s deposition; (2) An-gies Colley’s deposition; and (3) Ophelia Survia’s deposition.

A hearing on the motion for summary judgment was held on September 23, 2011; however, because plaintiffs failed to bring the trial court judge a copy of the opposition after filing the opposition with the Clerk of Court1, the trial court granted [892]*892Citizens’ motion for summary judgment without oral argument from either side. Plaintiffs now appeal this final judgment. It is worth noting that the trial court judge filed a per curiam with this Court on January 11, 2012, stating that “[e]ven when the court does not allow counsel to argue, the court does consider the |4substance of the Opposition, the Memorandum in Support of Opposition, and any supporting evidence attached thereto.”

Standard of Review

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith 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). A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id. La. C.C.P. art. 966(C)(2) provides that where, as in the instant case, the party moving for summary judgment will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an | ¡¡absence of factual support for one or [893]*893more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it -will be able to satisfy its evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law.

Discussion

On appeal, plaintiffs argue that the trial court erred in granting Citizens’ motion for summary judgment because there are genuine issues of material fact in dispute that require a trial on the merits. Specifically, plaintiffs argue that (1) Citizens’ policy provides coverage not only to Angies Colley, but to all defendants since they were living with Angies at the time of the incident; and (2) Citizens does provide coverage under the policy for “bodily injury” resulting from the use of reasonable force by an “insured” to protect persons or property. We agree.

When interpreting an insurance contract, courts must attempt to discern the common intent of the insured and insurer with an analysis that begins with a review of the words of the insurance contract. La. C.C. art. 2045; Succession of Fannaly v. Lafayette Ins. Co., 2001-1355, p. 3 (La.1/15/02), 805 So.2d 1134, 1137. If an ambiguity remains after applying the general rules of contractual interpretation to an insurance contract, the ambiguous contractual provision is construed against the insurer who furnished the contract’s text and in favor of the insured. Id., p. 4, 805 So.2d at 1138; La. C.C.

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Related

Succession of Fannaly v. Lafayette Ins. Co.
805 So. 2d 1134 (Supreme Court of Louisiana, 2002)
Benton Casing Service, Inc. v. Avemco Ins. Co.
379 So. 2d 225 (Supreme Court of Louisiana, 1979)
Independent Fire Ins. Co. v. Sunbeam Corp.
755 So. 2d 226 (Supreme Court of Louisiana, 2000)
Smith v. Our Lady of the Lake Hospital, Inc.
639 So. 2d 730 (Supreme Court of Louisiana, 1994)

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Bluebook (online)
94 So. 3d 890, 2011 La.App. 4 Cir. 1735, 2012 WL 1744207, 2012 La. App. LEXIS 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/survia-v-colley-lactapp-2012.