Thomas v. Miller

159 So. 3d 491, 14 La.App. 5 Cir. 115, 2014 La. App. LEXIS 2279, 2014 WL 4723863
CourtLouisiana Court of Appeal
DecidedSeptember 24, 2014
DocketNo. 14-CA-115
StatusPublished
Cited by1 cases

This text of 159 So. 3d 491 (Thomas v. Miller) 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
Thomas v. Miller, 159 So. 3d 491, 14 La.App. 5 Cir. 115, 2014 La. App. LEXIS 2279, 2014 WL 4723863 (La. Ct. App. 2014).

Opinion

ROBERT M. MURPHY, Judge.

12Plaintiffs-appellants, George and Dolores Thomas, appeal the trial court’s judgment granting summary judgment in favor of defendant-appellee, Alea London, Ltd., which held that plaintiffs’ claims are excluded under the assault and battery exclusion contained in the Alea insurance policy at issue. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On January 12, 2002, Steve Thomas, a patron at the Platinum Club, LLC located in Harvey, Louisiana, was shot and killed by Corey Miller, an entertainer performing at the club that evening. Miller was subsequently convicted of second degree murder and sentenced to life imprisonment. On March 4, 2002, the parents of Steve Thomas, George and Dolores Thomas, filed a petition for damages arising out of the death of their son against several defendants, including Corey Miller and the [493]*493Platinum Club. In their petition, plaintiffs alleged that the death of their son was directly and proximately caused by the following acts and omissions of the Platinum Club: (1) allowing Thomas, who was 16 years old at the time, to enter jsand remain in the club; (2) permitting Miller to bring a firearm into the club and discharge it; (3) failing to provide a safe environment for patrons by failing to monitor and prevent the introduction into, and use of firearms in the club; and (4) other acts and omissions which will be shown at trial.

On April 30, 2003, plaintiffs supplemented their petition to add as an additional defendant the commercial general liability insurer of Platinum Club, Alea London, Ltd., appellee herein. On May 28, 2013, Alea filed a motion for summary judgment seeking to dismiss plaintiffs’ claims against Alea, based upon the “assault and battery” exclusion of its insurance policy provided to the Platinum Club. The trial court held a hearing on the motion for summary judgment on July 16, 2013, wherein the trial court granted summary judgment in favor of Alea. On July 24, 2013, the trial court issued a judgment granting Alea’s motion for summary judgment, finding that plaintiffs’ claims were excluded under the assault and battery exclusion contained in Alea’s insurance policy. Plaintiffs now appeal.

STANDARD OF REVIEW

Louisiana Code of Civil Procedure Article 966 provides that a motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that the mover is entitled to summary judgment as a matter of law.” It is well settled that appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Garrison v. Tanenbaum, 02-1181 (La.App. 5 Cir. 4/8/03), 846 So.2d 40, 42; (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 750). Therefore, this Court must |4consider whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Id.

LAW AND DISCUSSION

In their sole assignment of error, plaintiffs contend that the trial court erred in finding that there were no genuine issues of material fact that preclude summary judgment in favor of Alea. Specifically, plaintiffs allege that summary judgment was inappropriate in this case because the assault and battery exclusion is vague and ambiguous for the following reasons: (1) the two paragraphs of the assault and battery exclusion must be read conjunc-tively; (2) even if the two paragraphs are not read conjunctively, the assault and battery exclusion does not apply because (a) under the first paragraph, the exclusion does not apply to an assault and battery committed by a patron of the insured; and (b) under the second paragraph, the exclusion only applies to claims of negligent hiring, retention, supervision or control of the insured’s employees.

As an initial matter, we note that after reviewing the record, we have found nothing in the record to show that plaintiffs have previously raised the issue regarding a conjunctive reading of the two paragraphs of the assault and battery exclusion, so that the trial court would have been able to consider the issue, prior to ruling. We do not consider contentions raised for the first time on appeal which [494]*494were not pleaded in the court below and which the trial court has not addressed. Brown v. Almanza, 12-165 (La.App. 5 Cir. 10/16/12), 102 So.3d 981, 983; Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112. Accordingly, we decline to consider plaintiffs’ argument that the trial court erred in failing to interpret the two paragraphs of the exclusion conjunctively. However, as shown by our analysis below, we have reviewed both paragraphs of the assault and battery exclusion, and determined that plaintiffs’ claims are excluded under both paragraphs of the policy.

|jjA dispute as to the issue of whether, as a matter of law, the language of an insurance policy provides coverage to a party, can be properly resolved within the context of a motion for summary judgment. Domingue v. Reliance Ins. Co., 619 So.2d 1220, 1223 (La.App. 3rd Cir.1993). An insurer seeking to avoid coverage through summary judgment bears the burden of proving the applicability of an exclusion within a policy. Doeir v. Mobil Oil Corp., 00-0947 (La.12/19/00), 774 So.2d 119, 124, modified on other grounds on reh’g, 00-0947 (La.3/16/01), 782 So.2d 573. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Beck v. Burgueno, 43,557 (La.App. 2 Cir. 9/17/08), 996 So.2d 404, 409.

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Mattingly v. Sportsline, Inc., 98-230 (La.App. 5 Cir. 10/28/98), 720 So.2d 1227, 1229, writ denied, 98-2938 (La.1/29/99), 736 So.2d 830; Ledbetter v. Concord General Corp., 95-0809 (La.1/6/96), 665 So.2d 1166. The extent of coverage is determined by the parties’ intent, as reflected by the words of the policy. Id. Unless the words of the policy have acquired a technical meaning, the words used in the policy will be construed using their plain, ordinary and generally prevailing meaning. La. C.C. art. 2947; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94); 630 So.2d 759. The agreement must be enforced as written if the policy wording at issue is clear and expresses the intent of the parties. Ledbetter, supra; Pareti v. Sentry Indem. Co., 536 So.2d 417 (La. 1988).

An insurance company may limit coverage in any manner, as long as the limitations do not conflict with statutory provisions or public policy. Reynolds v. Select Properiies, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. The exclusionary provisions of an insurance contract are strictly construed against the insurer, and any ambiguity in the exclusion is construed in favor of the insured. Garcia v. St. Bernard Parish Sch. Bd., 576 So.2d 975 (La.1991).

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159 So. 3d 491, 14 La.App. 5 Cir. 115, 2014 La. App. LEXIS 2279, 2014 WL 4723863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-miller-lactapp-2014.