STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-254
SUSANA CAROLA PILIGRA
VERSUS
AMERICA’S BEST VALUE INN, ET AL.
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2007-4929 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and James T. Genovese, Judges.
AFFIRMED.
Michael Wayne Adley Judice & Adley P. O. Drawer 51769 Lafayette, LA 70505-1769 Telephone: (337) 235-2405 COUNSEL FOR: Defendant/Appellant - Vantage Hospitality Group, Inc. d/b/a America’s Best Value Inn
Skipper Maurice Drost 550 North Huntington Street Sulphur, LA 70663 Telephone: (337) 528-9438 COUNSEL FOR: Defendant/Appellee - Dhan Laxmi, LLC Yul Dubart Lorio Blaine Andrew Doucet Doucet Lorio, LLC One Lakeshore Drive - Suite 1600 Lake Charles, LA 70629 Telephone: (337) 433-0100 COUNSEL FOR: Plaintiff/Appellant - Susana Carola Piligra
Gerald Anthony Melchiode Galloway, Johnson, Tompkins, Burr & Smith One Shell Square - 40th Floor 701 Poydras Street New Orleans, LA 70139 Telephone: (504) 525-6802 COUNSEL FOR: Defendant/Appellee - Evanston Insurance Company THIBODEAUX, Chief Judge.
Susana Piligra was allegedly raped at the America’s Best Value Inn, a
hotel operated by Dhan Laxmi, LLC. She brought suit against Dhan Laxmi, Vantage
Hospitality Group, Inc. d/b/a America’s Best Value Inn (“Vantage”),1 and the
insurance company that issued Dhan Laxmi’s liability policy, Evanston Insurance
Company (“Evanston”). Ms. Piligra claims that Dhan Laxmi and Vantage are liable
to her as they were negligent in (1) transporting her to a hotel room without her
consent, and (2) assuming a duty of care and failing to fulfill that duty of care in a
responsible manner. Ms. Piligra asserts Evanston is liable to her because it issued
Dhan Laxmi’s insurance liability policy.
Evanston moved for summary judgment, citing several exclusions and
endorsements contained in the policy issued to Dhan Laxmi (“Evanston policy”) that
precluded coverage of Ms. Piligra’s claims. The trial court granted Evanston’s
motion, and Ms. Piligra and Vantage appealed. For the following reasons, we affirm
the judgment of the trial court.
I.
ISSUES
We must decide whether the trial court erred:
(1) in ruling that the endorsements contained in the Evanston policy preclude coverage for Ms. Piligra’s injuries; and,
(2) in holding that Evanston had no duty to defend Vantage.
1 Ms. Piligra erroneously filed suit against America’s Best Value Inn. The proper party was later identified as Vantage Hospitality Group, Inc. d/b/a America’s Best Value Inn. II.
FACTS AND PROCEDURAL HISTORY
Ms. Piligra was a patron at the nightclub located inside the hotel
operated by Dhan Laxmi. While there, she consumed an excessive amount of alcohol
and eventually lost consciousness in the club. Ms. Piligra alleges that after she lost
consciousness, an employee of the nightclub escorted her to a room on the second
floor of the hotel. On the way to the hotel room, the hotel employee encountered an
unknown male who offered to help. The hotel employee then left Ms. Piligra in the
hotel room with the unknown male. Ms. Piligra’s friend later went to check on her
and found the hotel room locked and the curtains closed. The friend opened the door
but found that the security chain was latched. She then moved the curtain and saw
the unknown male climbing off Ms. Piligra with his pants down. Ms. Piligra was
transported to a local hospital, and it was determined that she was allegedly raped by
the unknown male while she was unconscious.
Ms. Piligra filed suit. She alleges that Vantage and Dhan Laxmi
negligently: (1) transported her to a room without her consent; (2) failed to attend to
her in a responsible manner as required by the innkeeper laws or as one who has
assumed a duty of care; and, (3) left her alone with an unknown male, thereby
subjecting her to rape and other injuries. Moreover, Ms. Piligra asserts that Evanston
is liable to her as it issued a policy of insurance to Dhan Laxmi that was in effect at
the time of the alleged incident.
The trial court granted Evanston’s motion for summary judgment,
finding that no coverage exists under the Evanston policy because Ms. Piligra’s
damages are excluded by disclaimers in the policy. The trial court also held that
2 Evanston has no duty to defend Dhan Laxmi or Vantage. Ms. Piligra and Vantage
appeal the trial court’s judgment.
III.
LAW AND DISCUSSION
Standard of Review
“When an appellate court reviews a district court judgment on a motion
for summary judgment, it applies the de novo standard of review, ‘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.’” Gray v. Am. Nat’l Prop. & Cas.
Co., 07-1670, p. 6 (La. 2/26/08), 977 So.2d 839, 844 (quoting Supreme Serv. &
Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638).
“The judgment sought 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 mover is entitled to
judgment as a matter of law.” La.Code Civ.P. art. 966(B).
Interpretation of Insurance Policies
An insurance policy is interpreted like any other contract, i.e., by using
ordinary contract principles. Ledbetter v. Concord Gen. Corp., 95-809 (La. 1/6/96),
665 So.2d 1166. The extent of the coverage is determined by the parties’ intent. Id.
The agreement of the parties must be enforced as written as long as the policy
wording is clear and unambiguous. Id. Moreover, “[e]xclusionary provisions in
insurance contracts are strictly construed against the insurer, and any ambiguity is
construed in favor of the insured.” Id. at 1169. Insurance companies are permitted
3 to limit coverage through policy exclusions as “long as the limitations do not conflict
with statutory provisions or public policy.” Id. With these principles in mind, we
now examine the Evanston policy.
Coverage of Ms. Piligra’s Claims Under the Evanston Policy
Ms. Piligra argues that the trial court erred in finding that no coverage
exists under the Evanston policy. To support her argument, Ms. Piligra relies upon
a body of case law and the Restatement (Second) of Torts that concern the liability
of a defendant. Here, however, the question before us is one of coverage, not of
liability. Thus, we agree with the trial court and find that the Evanston policy
exclusions and endorsements preclude coverage of Ms. Piligra’s alleged injuries. We
examine each exclusion and endorsement in turn, and we also examine Ms. Piligra’s
claims of negligence as they relate to coverage under the policy.
(1) The Assault and Battery Exclusion
The policy issued by Evanston to Dhan Laxmi contains an Assault and
Battery Exclusion which provides:
The coverage under this policy does not apply to any claim, suit, cost or expense arising out of assault and/or battery, or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of any Insured, Insured’s employees, patrons or any other person. Nor does this insurance apply with respect to any charges or allegations of negligent hiring, training, placement or supervision. Furthermore, assault and/or battery includes “bodily injury” resulting from the use of reasonable force to protect persons or property. The sentence “This exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force to protect persons or property” is deleted from the Commercial General Liability Coverage Form, Section I, Item 2., Exclusions, a.
4 Both the Habitational Endorsement and the Restaurant, Bar, Tavern,
Night Clubs, Fraternal and Social Clubs Endorsement also contain Assault and
Battery Exclusions. The Habitational Endorsement states:
The coverage under this policy does not apply to “bodily injury,” “property damage,” “personal injury,” “advertising injury,” or any injury, loss or damage arising:
....
3. Out of allegations of assault and/or battery, or out of any act or omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of any Insured, Insured’s employees, patrons or any other person. Nor does this insurance apply with respect to any charges or allegations of negligent hiring, training, placement or supervision. Furthermore, assault and/or battery includes “bodily injury” resulting from the use of reasonable force to protect persons or property. The sentence “This exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force to protect persons or property” is deleted from the Commercial General Liability Coverage Form, section I, Item 2., Exclusions, a.
The Restaurant, Bar, Tavern, Night Clubs, Fraternal and Social Clubs
Endorsement further precludes coverage for injuries arising out of an assault and
battery. The pertinent language is as follows:
The coverage under this policy does not apply to “bodily injury,” “property damage,” “personal injury,” “advertising injury,” or any injury, loss or damage arising out of:
4. Assault and/or Battery, or out of any act or omission in connection with the prevention or suppression of such acts,
5 whether caused by or at the instigation or direction of any Insured, Insured’s employees, patrons or any other person. Furthermore, assault and/or battery includes “bodily injury” resulting from the use of reasonable force to protect persons or property. The sentence “This exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force to protect persons or property” is deleted from the Commercial General Liability Coverage Form, Section 1, Item 2., Exclusions a.
The policy language and endorsements clearly preclude coverage for
claims arising out of an assault and/or battery. Here, Ms. Piligra seeks damages for
injuries resulting from a rape. Louisiana courts have upheld endorsements similar to
the Evanston policy endorsements that preclude coverage for assault and battery,
including rape. See Ledbetter, 665 So.2d at 1166. In Ledbetter, a motel guest
brought suit against the motel owners and their commercial general liability insurer
after another patron raped her. The insurance policy contained an assault and battery
exclusion similar to the one in the Evanston policy. The court found that a rape
necessitates the use of force or violence. Thus, the assault and battery exclusion
precluded recovery by the plaintiff.
Ms. Piligra alleges that she was raped. Because rape is a battery and
because the assault and battery exclusion in the Evanston policy is unambiguous, we
find that the exclusion is applicable and precludes coverage for Ms. Piligra’s injuries.
6 (2) The Sexual Abuse and/or Molestation Exclusion
The Evanston policy also contains a sexual abuse and/or molestation
exclusion which further precludes coverage. The exclusion states:
The coverage under this policy does not apply to “bodily injury,” “property damage,” “personal injury,” “advertising injury,” or any injury, loss or damage arising out of:
1. The actual or threatened abuse or molestation or licentious, immoral or sexual behavior whether or not intended to lead to, or culminating in any sexual act, of any person, whether caused by, or at the instigation of, or at the direction of, or commission by, any insured, his employees, or any other person, or
3. Charges or allegations of negligent hiring, employment, investigation, supervision, reporting to the proper authorities, or failure to so report; or retention of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by paragraph 1. above.
Abuse includes, but is not limited to, negligent or intentional infliction of physical, emotional or psychological injury/harm.
In P.D. v. S.W.L., 07-2534 (La.App. 1 Cir. 7/21/08), 993 So.2d 240, writ
denied, 08-2770 (La. 2/13/09), 999 So.2d 1146, the first circuit held that a similar
exclusion was clear and unambiguous and operated to preclude coverage for damages
arising out of a rape. The court analyzed the term “sexual molestation” to determine
whether it included rape and found that the general definitions of “molest” implied
some degree of unwanted touching. Id. at 244 (citing Newby v. Jefferson Parish Sch.
Bd., 99-98 (La.App. 5 Cir. 6/1/99), 738 So.2d 93). Because the plaintiffs’ action
involved allegations of nonconsensual sexual intercourse, the court found that the
7 sexual molestation exclusion applied. Id. Moreover, the court denied all of
plaintiffs’ claims, regardless of the nature of the cause of action, since all of the
alleged damages arose out of the alleged sexual molestation. Id.
Here, Ms. Piligra alleges that she was raped. Like the plaintiffs in P.D.,
all of Ms. Piligra’s alleged injuries arise out of the rape. Rape clearly qualifies under
the sexual molestation exclusion contained in the Evanston policy. Thus, Ms.
Piligra’s claims are precluded under the policy.
(3) Restaurant, Bar, Tavern, Night Clubs, Fraternal and Social Clubs Endorsement
Finally, coverage is further precluded by the liquor liability endorsement
contained in the Restaurant, Bar, Tavern, Night Clubs, Fraternal and Social Clubs
Endorsement which provides:
5. Liquor Liability. Liquor Liability 2.c. Exclusion, Commercial General Liability Coverage Form, Section I – Coverage, is replaced by the following and applies throughout this policy:
The coverage under this policy does not apply to “bodily injury,” “property damage,” “personal injury,” “advertising injury,” or any injury loss or damage arising out of:
a). Causing or contributing to the intoxication of any person; and/or
b). Furnishing of alcoholic beverages to anyone . . . under the influence of alcohol; and/or
c). Any statute, ordinance or regulation relating to sales, gift, distribution or use of alcoholic beverages; and/or
d). Any act or omission by any insured, any employee of any insured, patrons, members, associates, volunteers or any other persons [sic] respects providing or failing to provide transportation, detaining or failing to detain any
8 person, or any act of assuming or not assuming responsibility for the well being, supervision or care of any person allegedly under or suspected to be under the influence of alcohol;
Louisiana courts, including this court, have consistently held that
similarly-worded exclusions are unambiguous and preclude coverage for injuries
arising out of intoxication. See Ryder v. Darby, 09-122 (La.App. 3 Cir. 6/3/09), 11
So.3d 745; 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), 724 So.2d 744. Moreover, exclusions limiting
coverage in cases of intoxication do not violate public policy. Boudreaux, 714 So.2d
49; Frost v. David, 95-839 (La.App. 1 Cir. 5/10/96), 673 So.2d 340.
Ms. Piligra’s claim that Vantage and/or Dhan Laxmi assumed
responsibility for her care after she became intoxicated fits squarely within the
limitations of the liquor liability exclusion. Thus, this section of the Evanston policy
further precludes Ms. Piligra’s claims.
(4) Independent Claims of Negligence
Ms. Piligra asserts that the trial court erred in granting summary
judgment to Evanston due to her independent allegations of negligence against Dhan
Laxmi and Vantage. In making this argument, Ms. Piligra carelessly dismisses this
court’s decision in Proshee v. Shree, Inc., 04-1145 (La.App. 3 Cir. 2/2/05), 893 So.2d
939, because it is “not a Section 234 [sic] case.” As we previously indicated,
Restatement (Second) of Torts, § 324 is not instructive here. Proshee, however,
offers guidance.
In Proshee, a motel patron was the victim of an assault and battery
outside his motel room. The patron sued the motel alleging that it negligently failed
to provide adequate security. The motel’s insurer sought summary judgment citing
9 an assault and battery exclusion. The trial court granted the insurer’s motion, and we
After finding that the assault and battery exclusion in the Proshee policy
was unambiguous and applicable to the facts of the underlying case, we next
reviewed whether the plaintiff’s allegations of independent acts of negligence
affected the applicability of the exclusion. We found that the independent allegations
of negligence did nothing to negate the applicability of the assault and battery
exclusion. Specifically, we looked to the fourth circuit’s decisions in Maise v. Cat’s
Meow, Inc., 96-1998 (La.App. 4 Cir. 10/16/96), 683 So.2d 846, and Washington v.
Spurlock, 97-2411 (La.App. 4 Cir. 12/17/97), 703 So.2d 1378, writ denied, 98-173
(La. 3/20/98), 715 So.2d 1214, for guidance.
In Maise, the fourth circuit held that irrespective of the fault alleged by
plaintiff (whether negligence, intentional act or otherwise), because the injuries arose
out of a battery, the policy provided no coverage due to its assault and battery
exclusion. Similarly, in Washington, the plaintiff argued that her injuries arose out
of a robbery rather than an assault or battery. The court granted summary judgment
in favor of the insurer, finding that the plaintiff’s injuries resulted from a battery, even
though the battery was committed during the course of a robbery. The fourth circuit
explained, “[s]imply put, the respondent was injured by a battery—no battery, no
injuries.” Washington, 703 So.2d at 1379.
Here, Ms. Piligra claims independent acts of negligence by the hotel.
The fact is, however, she was raped. Rape is inclusive of battery, and the battery
caused her injuries. Irrespective of her claims of negligence, the end result is the
same. Because her injuries arose out of a battery, the assault and battery exclusion
in the Evanston Policy precludes coverage.
10 Vantage Hospitality’s Appeal
Vantage also appeals the trial court’s judgment and alleges that genuine
issues of material fact exist that preclude the trial court’s granting of summary
judgment. Moreover, Vantage claims that the ruling on summary judgment has no
impact on Vantage and is merely an “advisory opinion because no claims have been
made in the pending litigation regarding coverage by Evanston for Vantage.” We
disagree with Vantage on both points.
(1) The Propriety of Evanston’s Motion for Summary Judgment
Vantage asserts that Evanston’s motion for summary judgment is
procedurally improper. Vantage is mistaken. Louisiana Code of Civil Procedure
Article 966(a) states: “[t]he plaintiff or defendant in the principal or any incidental
action . . . may move for a summary judgment . . . for all or part of the relief for which
he has prayed.” In its Answer to Ms. Piligra’s petition, Evanston stated that it owed
no coverage and had no duty to defend the claims at the basis of this litigation.
Though those claims were made by Ms. Piligra, they extend to the entity that holds
the insurance policy—in this case, Dhan Laxmi.2 Thus, in its ruling, the trial court
unequivocally stated that Evanston had no duty to defend either Dhan Laxmi or
Vantage. We agree.
(2) Validity of the Exclusions Under the Evanston Policy
Vantage asserts that genuine issues of material fact exist regarding
whether the policy exclusions and endorsements relied on for the exclusion of Ms.
2 It is unclear whether Vantage is actually an insured under the Evanston policy. Evanston argues that Vantage is not an insured because “Vantage Hospitality Group, Inc. d/b/a America’s Best Value Inn” is not specifically named as an Insured (“America’s Best Value Inn” is named, however). For the purposes of this opinion, we will assume that Vantage is an insured under the policy. This assumption is of no consequence, however, since we find that Evanston has no duty to defend either Dhan Laxmi or Vantage.
11 Piligra’s claims were authorized, in effect, or applicable at the date of the incident.
Specifically, Vantage asserts that the exclusions and endorsements are not validly part
of the Evanston policy because the spaces for the insured’s name, policy number, and
effective date are not signed, and the endorsements are not signed. Vantage cites to
no authority in support of its argument. We find that Vantage’s argument is
misplaced.
The fifth circuit addressed a similar issue in Boudreaux. In Boudreaux,
714 So.2d 49, the insured argued that the endorsement containing a liquor liability
exclusion was invalid because it was not signed by an authorized agent. The court
disagreed. The declarations page of the policy was countersigned and contained a list
of endorsements, including the liquor liability exclusion. Moreover, the endorsement
was attached to and made part of the policy when issued; thus, a countersignature was
not needed.
The same is true for the endorsements relied on by Evanston. The
endorsements clearly indicate that the completion of the boxes at the top of the form
is optional where the endorsement is shown on the policy declarations page. Each
endorsement relied upon by Evanston for excluding coverage of Ms. Piligra’s claims
contains this notation. The declarations page in the Evanston policy refers to the
Schedule of Forms and Endorsements, which lists all of the forms and endorsements
that make up the policy. The Schedule includes all of the endorsements Evanston
relies on to deny coverage for Ms. Piligra’s claims. The Schedule notes the policy
number, the name of the insured, and the effective date of the endorsements. Thus,
we find that the endorsements were properly part of the policy issued to Dhan Laxmi
and were effective on the date of the incident that led to Ms. Piligra’s injuries.
12 Vantage also argues that neither Vantage nor Dhan Laxmi accepted the
issuance of the endorsements and that no evidence exists that any insured was
“aware” of the issuance of the endorsements. Vantage claims that this supposed lack
of awareness presents a genuine issue of material fact as to whether the endorsements
were ever issued. We disagree.
An insured is responsible for reading its policy and is presumed to know
its contents. See Stephens v. Audobon Ins. Co., 27,658 (La.App. 2 Cir. 12/6/95), 665
So.2d 683, writ denied, 96-66 (La. 2/28/96), 668 So.2d 363. Thus, we assume that
Dhan Laxmi read the Evanston policy and is familiar with its terms. Any feigned
ignorance of the policy’s endorsements and exclusions does not affect their validity.
As such, we find that no genuine issue of material fact exists as to
whether the policy exclusions and endorsements relied on for the exclusion of Ms.
Piligra’s claims were authorized, in effect, or applicable at the date of the incident.
The trial court properly granted summary judgment in favor of Evanston and properly
held that no coverage exists for Ms. Piligra’s injuries under the Evanston policy.
Moreover, Evanston has no duty to defend either Dhan Laxmi or Vantage.
IV.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Costs of this appeal are assessed against Ms. Piligra and Vantage.