STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2023 CA 0343
VARILE RAE ANN PITRE TUCKER V l VERSUS
CECELIA CHATFIELD, ET AL
Judgment Rendered: NOV 0 9 2023
Appealed from the 23rd Judicial District Court In and for the Parish of Ascension State of Louisiana Case No. 124, 516
The Honorable Alvin Turner, Jr., Judge Presiding
Jacque B. Pucheu, Jr. Counsel for Plaintiff/Appellant Eunice, Louisiana Varile Rae Ann Pitre Tucker
Samuel P. Baumgartner Counsel for Defendant/Appellee Travis L. Simmons Homesite Insurance Company Covington, Louisiana
Mark R. Pharr, III Counsel for Defendant Lafayette, Louisiana Cecelia Chatfield
BEFORE: GUIDRY, C. J., CHUTZ, AND LANIER, JJ. LANIER, J.
This is an appeal from a judgment in a dog -bite case granting the motion for
summary judgment filed by an insurer and dismissing plaintiffs claims against the
insurer with prejudice. For the following reasons, we reverse and remand for
further proceedings.
FACTS AND PROCEDURAL HISTORY
On January 30, 2019, Varile Rae Ann Pitre Tucker filed suit against Cecelia
Chatfield and Homesite Insurance Company (" Homesite"), as the homeowners'
insurer of the premises where the incident occurred. Therein, Ms. Tucker alleged
that on February 8, 2018, Ms. Chatfield was a resident of 11 182 River Highlands
Drive, Unit 12B, St. Amant, Louisiana (" Unit 1. 213") and had care, custody, and
control of the property. She further asserted that Ms. Chatfield' s grandparents,
Douglas and Diana Wade, were the named insureds under the homeowners' policy 1 issued by Homesite. According to Ms. Tucker's petition, Ms. Chatfield lived in 2 Unit 12B with her minor son and the dog who attacked Ms. Tucker, a Great Dane.
On the date in question, Ms. Tucker, a resident of Unit 5A in the same
condominium complex, left her unit to retrieve her mail at the community mailbox.
At the same time, Ms. Chatfield' s son was walking the dog in the parking lot of the
condominium complex. As alleged by Ms. Tucker, the dog pulled the leash out of
the boy' s hand and began to run free, eventually knocking her to the ground and
causing her to suffer injuries and damages.
Ms. Chatfield and Homesite each filed an answer to the petition, generally
denying the allegations therein. Thereafter, Homesite filed a motion for summary
1 The spelling of Mrs. Wade's name is unclear from the record. In the petition, it is spelled Diana," but it is also spelled " Diane" in the insurance policy and " Dianne" in an affidavit in the record. For purposes of this opinion, we will refer to her as " Diana," as she is referenced in the petition.
2 The record reflects that at the time of the incident, Ms. Chatfield's two sons, ages nine and seven, were living with her, along with two dogs, both Great Danes.
2 judgment asserting that there was no coverage under the Homesite policy because
Ms. Chatfield was not an " insured" under the policy and that Unit 12B did not meet
the definition of an " insured location." Ms. Tucker opposed the motion for
summary judgment, pointing to special provisions of the policy concerning the
death of a person named in the declarations and the resulting coverage afforded to
Ms. Chatfield because she had temporary custody of the property.
The motion was heard on October 11, 2022. Following arguments, the
matter was taken under advisement. Subsequently, on November b, 2022, the trial
court issued reasons for judgment finding that Ms. Chatfield did not meet the
definition of an insured under the policy because she was neither a named insured
nor a resident relative of Diana Wade. On January 10, 2023, the trial court signed
a judgment, granting Homesite' s motion for summary judgment, dismissing, with
prejudice, all claims filed by Ms. Tucker against Homesite, and ordering that
Homesite owed no defense or indemnity to Ms. Chatfield for the incident in
question.
From the January 10, 2023 judgment, Ms. Tucker appeals, contending that
the trial court committed error in:
1) finding that Diana Wade was the sole owner of Unit 12B;
2) finding that Diana Wade was the only named insured under the Homesite
policy;
3) failing to address her argument with regard to Section I and Section 11
Conditions of the policy (" the death provisions"), which extended liability
coverage by declaring that an insured includes the person having proper temporary
custody of the property until the appointment or qualification of a legal
representative; and
4) failing to find a genuine issue of material fact as to whether Ms.
Chatfield had temporary custody of the insured premises.
3 DISCUSSION
Summary Judgment
Appellate courts review the grant or denial of summary judgment de novo
under the same criteria governing the trial court's consideration of whether
summary judgment is appropriate. Huggins v. Amtrust Insurance Company of
Kansas, Inc., 2020- 0516 ( La. App. 1 Cir. 12130120), 319 So. 3d 362, 365. A court
shall grant summary judgment if the pleadings, memorandum, and admissible
supporting documents show there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law. La. Code Civ. P. art. 966( A)(3).
Material facts are those that potentially ensure or preclude recovery, affect the
litigant's success, or determine the outcome of a legal dispute. Daniels v.
USAgencies Cas. Ins. Co., 2011- 1357 ( La. App. 1 Cir. 513112), 92 So. 3d 1049,
1055.
The summary judgment movant maintains the burden of proof.
Nevertheless, if the movant will not bear the burden of proof at trial on the issue
before the court on the motion, his burden is satisfied by pointing out an absence of
factual support for one or more elements essential to the adverse party' s claim,
action, or defense. Thereafter, the adverse party must produce factual support
sufficient to establish he will be able to satisfy his evidentiary burden at trial. La.
Code Civ. P. art. 966( D)( 1). If the adverse party fails to meet this burden, there is
no genuine issue of material fact, and, if appropriate, the court shall render
summary judgment against him. See La. Code Civ. P. arts. 966( D)( 1) and 967( B).
Thus, in deciding a motion for summary judgment, the court must first
determine whether the supporting documents presented by the mover are sufficient
to resolve all material factual issues. If not, summary judgment must be denied in
favor of a trial on the merits. Crockerham v. Louisiana Medical Mutual
Insurance Company, 2017- 1590 ( La. App. 1 Cir. 6121118), 255 So. 3d 604, 608.
4 It is important to note, however, that when a motion for summary judgment is
made and properly supported, an adverse party may not rest on the mere
allegations or denials of her pleading. La. Code Civ. P. art. 967( B). Therefore, we
must first conduct a de novo review of the evidence submitted with the motion for
summary judgment and determine if there were no genuine issues of material fact.
Crockerham, 255 So. 3d at 608.
Legal Precepts
Summary judgment is appropriate for determining issues relating to
insurance coverage. See La. Code Civ. P. art. 966( E); Bosse v. Access Home
Insurance Company, 2018- 0482 ( La. App. 1 Cir. 12/ 17/ 18), 267 So. 3d 1142,
1145. Additionally, interpretation of an insurance policy is usually a legal question
that can be properly resolved by means of a motion for summary judgment.
Sanchez v. Callegan, 99- 0137 ( La. App. 1 Cir. 2/ 18100), 753 So.2d 403, 405.
However, summary judgment declaring a lack of coverage under an insurance
policy may not be rendered unless there is no reasonable interpretation of the
policy under which coverage could be afforded. Reynolds v. Select Properties,
Ltd., 93- 1480 ( La. 4/ 11/ 94), 634 So. 2d 1180, 1183.
An insurance policy is a contract between the insured and the insurer and has
the effect of law between the parties. Highlands Underwriters Ins. Co. v. Foley,
96- 1018 ( La. App. 1 Cir. 3/ 27197), 691 So. 2d 1336, 1340. Thus, an insurance
policy should be construed using the general rules of interpretation of contracts set
forth in the Louisiana Civil Code. Mayo v. State Farm Mut. Auto. Ins. Co.,
2003- 1801 ( La. 2/ 25/ 04), 869 So. 2d 96, 99. See also Billiot v. Terrebonne Parish
Sheriffs Office, 98- 0246 ( La, App. 1 Cir. 2/ 19/ 99), 735 So. 2d 17, 24, writ denied,
99- 1376 ( La. 7/ 2/ 99), 747 So. 2d 22. The judiciary's role in interpreting an
insurance policy is to determine the common intent of the parties to the contract.
Mayo, 869 So. 2d at 99. See also La. Civ. Code art. 2045. The initial
5 determination of the parties' intent is found in the insurance policy itself. See La.
Civ. Code art. 2046. When a contract can be construed from the four corners of
the policy without extrinsic evidence, the question of contractual interpretation is
answered as a matter of law. Brown v. Drillers, Inc., 93- 1019 ( La. 1114194), 630
So. 2d 741, 749- 750.
The parties' intent, as reflected by the words of an insurance policy,
determines the extent of coverage. Such intent is to be determined in accordance
with the plain, ordinary, and popular sense of the language used in the policy,
unless the words have acquired a technical meaning. See La. Civ. Code art. 2047;
Highlands Underwriters, 691 So. 2d at 1340. If the language in an insurance
policy is clear and unambiguous, the agreement must be enforced as written, and a
reasonable interpretation consistent with the obvious meaning and intent of the
policy must be given. Highlands Underwriters, 691 So. 2d at 1340; Robinson v.
Heard, 2001- 1697 ( La. 2/ 26/ 02), 809 So. 2d 943, 945. Further, the party seeking
coverage under an insurance policy ( in this case, Ms. Tucker) has the burden of
proving the existence of coverage, which includes proving that the defendant ( in
this case, Ms. Chatfield) is insured by the policy at issue. See Beavers v. Hanover
Insurance Company, 2021- 0070 ( La. App. 1 Cir. 10/ 8/ 21), 331 So. 3d 340, 343.
If the contract cannot be construed based on language contained therein due
to an ambiguity, the court may look to extrinsic evidence to determine the parties'
intent. Maldonado v. Kiewit Louisiana Co., 2013- 0756 ( La. App. 1 Cir,
3/ 24/ 14), 146 So. 3d 210, 215. When making the determination as to the parties'
intent, any ambiguities within the policy must be construed in favor of the insured
to effect, not deny, coverage. Doerr v. Mobil Oil Corp., 2000- 0947 ( La.
12119/ 00), 774 So. 2d 119, 124, modified on other p rounds - on reh`g, 2000- 0947
La. 3116101), 782 So. 2d 573. Ambiguity in a policy will also be resolved by
ascertaining how a reasonable insurance policy purchaser would construe the
G clause at the time the insurance contract was entered. Fleniken v. Entergy Corp.,
99- 3023 ( La. App. 1 Cir. 2116101), 790 So. 2d 64, 69 n.4, writs denied, 2001- 1269,
2001- 1295 ( La. 6115101), 793 So.2d 1250, 1252. The determination of whether a
contract is clear or ambiguous is a question of law. Watts v. Aetna Cas. and Sur.
Co., 574 So.2d 364, 369 ( La. App. 1 Cir.), writ denied, 568 So. 2d 1089 ( La. 1990).
ASSIGNMENTS OF ERROR
In her first two assignments of error, Ms. Tucker asserts the trial court erred
in making certain erroneous findings, as reflected in the trial court's written reasons
for judgment. In her third and fourth assignments of error, Ms. Tucker addresses
the death provisions of the Homesite policy and whether Ms. Chatfield had proper
temporary custody of the insured premises at the time of the incident, which would
have qualified her as an insured under the policy.
At the outset, we note that appellate courts review judgments and not
reasons for judgment. Walton v. State Farm Mutual Automobile Insurance
Co., 2018- 1510 ( La. App. I Cir. 5/ 31/ 19), 277 So.3d 1193, 1199. In fact,
judgments are often upheld on appeal for reasons different than those assigned by a
trial court. Wooley v. Lucksinger, 2009- 0571 ( La. 411/ 11), 61 So. 3d 507, 572.
The written reasons for judgment are merely an explication of the trial court's
determinations and do not alter, amend, or affect the final judgment being
appealed. Walton, 277 So. 3d at 1199.
Additionally, the standard of review of a summary judgment by an appellate
court is de novo. Because this court reviews summary judgments de novo, we
afford no deference to the trial court's underlying reasoning for its judgment. John
River Cartage, Inc. v. Louisiana Generating, LLC, 2020- 0162 ( La. App. 1 Cir.
3/ 4120), 300 So. 3d 437, 453 n. 12, citing King v. Allen Court Apartments II,
2015- 0858 ( La. App. 1 Cir. 12123115), 185 So3d 835, 839, writ denied, 2016- 0148
La. 3/ 14/ 16), 189 So. 3d 1069. On de novo review, we also afford no deference to
7 the legal standard or analysis applied by the trial court. Accordingly, we will
review the summary judgment de novo to determine whether there is any genuine
issue of material fact, and whether the movant is entitled to judgment as a matter of
law. See La. Code Civ. P. art. 966( A)( 3).
As previously noted, the trial court in the instant case granted summary
judgment in favor of Homesite, finding that Ms. Chatfield was neither a named
insured, nor a resident relative of Diana Wade. On appeal, Ms. Tucker
acknowledges that she does not seek to reverse the trial court's ruling in this regard.
However, Ms. Tucker argues that pursuant to the undisputed facts and the clear
policy language regarding the death of a person named in the declarations page of
the policy, Ms. Chatfield is an insured under the Homesite policy. In the
alternative, Ms. Tucker asserts that at the very least, there remains a genuine issue
of material fact as to whether Ms. Chatfield qualifies as an insured under the death
provisions of the policy.
Admittedly, the trial court made no mention of the death provisions in its
written reasons for judgment or in its January 10, 2023 judgment. Generally,
silence in a judgment of the trial court as to any issue, claim, or demand placed
before the court is deemed a rejection of the claim and the relief sought is
presumed to be denied. Schoolhouse, Inc. v. Fanguy, 2010- 2238 ( La. App. 1 Cir.
6110111), 69 So. 3d 658, 664. Because Ms. Tucker argues that coverage under the
Homesite policy should be afforded to Ms. Chatfield pursuant to the death
provisions, we will consider the trial court' s silence as to Ms. Tucker's arguments
below regarding this issue as a denial, and we review it accordingly.
In the instant case, we must look to the language of the Homesite policy to
determine the extent of coverage, if any, that should be afforded to Ms. Chatfield
for the incident in question. The following pertinent definitions are provided in the
Homesite policy:
8 In this policy, " you" and " your" refer to the " named insured" shown in the Declarationsl31 and the spouse if a resident of the same household. In addition, certain words and phrases are defined as follows:
3. " Insured" means you and residents of your household who are:
a. Your relatives; or b. Other persons under the age of 21 and in the care of any person named above.
Under Section II [Liability Coverages], " insured" also means: C. With respect to animals ... to which this policy applies, any person ... legally responsible for these animals ... which are
owned by you or any person included in 3. a. or 3. b. above.
4. " Insured location" means: a. The " residence premises"; ....
8. " Residence premises" means the unit where you reside shown as the " residence premises" in the Declarations. 141
Citing these provisions, Homesite argued that based on the undisputed facts,
the policy issued to Douglas and Diana Wade did not provide coverage to Ms.
Chatfield under the circumstances alleged. In support of its motion for summary
judgment, Homesite submitted the deposition of Ms. Chatfield; the affidavit of
Homesite`s litigation adjuster, Eric Johnson,5 with a copy of the Homesite policy
attached; and a copy of Ms. Tucker's petition for damages.
Ms. Chatfield testified that she moved into Unit 12B in July or August 2017
with her two minor sons and one dog, Jazzy, a Great Dane.' In January 2018, she
acquired another Great Dane, Allie, who was approximately six to eight weeks old
at the time. Ms. Chatfield indicated that when she moved into Unit 12B, she
3 The individuals listed on the 2017 renewal declarations page were Douglas and Diana Wade.
a The insured location listed on the 2017 renewal declarations page was the address of Unit 12B, 11182 River Highlands Drive, Saint Amant, Louisiana.
s According to Mr. Johnson, Homesite was unaware that Diana Wade did not reside at the policy address. Mr. Johnson further stated that had Homesite been made aware of same, the policy would have never been issued. While the issue of whether this was a material misrepresentation by the Wades was discussed at the motion for summary judgment hearing, the Homesite policy is clear that coverage could only be denied under these circumstances if Homesite proved the conduct was committed with the intent to deceive. This issue was not addressed below and, thus, will not be considered in our de novo review.
6 According to the record, Jazzy was the dog involved in the incident with Ms. Tucker.
9 brought her own furniture with her. She further testified that she lives there rent
free, all while maintaining the property for Diana Wade, who was not only aware
of the living arrangement but has visited her granddaughter since she moved into
Unit 12B. 7 According to Ms. Chatfield, they have a very large, extended family,
and her grandparents purchased Unit 12B " Ulust for the family to hang out at."
Ms. Chatfield added that she pays the utilities and all of the bills associated with
Unit 12B and also keeps the property from deteriorating by making repairs as
needed. At the time of her deposition, September 2020, Ms. Chatfield was still
living in Unit 12B with her fiance and her four sons.
Ms. Chatfield indicated she was unaware if her grandmother had ever lived
in Unit 12B but knew that her grandmother had owned Unit 12B " for some time"
prior to her moving there in 2017. She stated that her parents had lived in Unit
12B in 2011 prior to purchasing a house. According to Ms. Chatfield, her
grandmother lives in Florence, Mississippi. Ms. Chatfield noted that her
grandparents had lived in Florence since before she was born. Ms. Chatfield
described the Florence house as " kind of [her grandparents'] home base" and her
grandmother' s " favorite house to live in." When asked how many houses her
grandmother owned, Ms. Chatfield replied, " I have no idea."
In opposition to the motion, Ms. Tucker offered the affidavit of Tracey W.
Langston, Ms. Chatfield' s mother;' the affidavit of her attorney, with attachments,
including information regarding the 2017 renewal of the Wade' s Homesite policy;
excerpts from Ms. Chatfield' s deposition; the affidavit of Peter Pistorius, a land and
7 Ms. Chatfield noted that her grandfather, Douglas Wade, passed away in October 2012.
8 We note that Homesite objected to the use of Ms. Langston' s affidavit as summary judgment evidence, arguing that the affidavit was irrelevant, based on hearsay, and did not meet the requirements of La. Code Civ. P. art. 967. Although the matter was argued at the hearing below, the trial court did not indicate whether it considered the affidavit in its ruling on the motion for summary judgment. Nonetheless, we have reviewed the affidavit and find that, with the exception of the portions of the affidavit that are hearsay, see La. Code Evid. arts. 801, et seq., the affidavit is admissible summary judgment evidence, and we have considered the affidavit as part of our de novo review.
10 title abstractor; and excerpts of the Homesite policy. In support of her position that
coverage should be afforded to Ms. Chatfield, Ms. Tucker pointed to a portion of
the policy entitled, " Sections I And II - Conditions," which contained the following
provisions concerning the death of an insured:
9. Death, If any person named in the Declarations or the spouse, if a resident of the same household, dies: a. We insure the legal representative of the deceased but only with respect to the premises and property of the deceased covered under the policy at the time of death; b. " Insured" includes: 1)Any member of your household who is an " insured" at the time of your death, but only while a resident of the " residence premises"; and
2) With respect to your property, the person having proper temporary custody of the property until appointment and qualification of a legal representative.
Ms. Tucker argued the evidence showed that Douglas Wade was named in the
Homesite policy declarations page, which had a policy period of July 2, 2017
through July 2, 2018. She noted further that because Mr. Wade was deceased and
no legal representative had been appointed and qualified on his behalf, the death
provisions contained in Paragraph 9( b)( 2) operated to afford coverage herein.
Moreover, although the Homesite policy does not define the terms " proper
temporary custody," Ms. Tucker maintained the evidence supported a finding that
Ms. Chatfield had custody of Unit 12B as Ms. Chatfield was living there with her
two sons and the two dogs, rent free, all while maintaining the property for Diana
Wade, who was fully aware of the living arrangement.
Despite the provisions in its policy regarding the death of a person named in
the declarations page, Homesite asserts that Ms. Chatfield is not an insured
because her presence in Unit 12B is that of a " full-time, long-term resident" and
not someone having " proper temporary custody" of the property pending
appointment and qualification of a legal representative." Moreover, although the
policy uses the term " proper temporary custody," Homesite cites La. Civ. Code
11 arts. 934 and 935 and argues that " seizin" and true legal " custody" of Douglas
Wade' s property and property rights are with his surviving spouse, Diana Wade.9 Homesite maintains that the death provisions of the policy are " intended to address
the need for emergent care for the insured property due to the sudden death of the
insured so that the property would be protected and not vacant."
In doing so, however, Homesite ignores the fact that its policy does not
equate " custody" of the property with ownership of the property. The term
seizin," is not found anywhere in Homesite's policy. Rather, the policy provides
that upon the death of a person named in the declarations, any person having
proper temporary custody" of the person' s property until appointment and
qualification of a legal representative becomes an insured. However, the policy
fails to define " proper temporary custody." Moreover, Homesite offered no
evidence of the appointment and qualification of a legal representative of Douglas
Wade in either Mississippi or Louisiana. In fact, the only evidence offered on this
issue was submitted by Ms. Tucker in the form of the affidavit of Peter Pistorius.
Mr. Pistorius stated that he was hired by counsel for Ms. Tucker to perform a
search of the conveyance and suit records of Ascension and Livingston parishes for
any probate proceedings filed in the name of, or on behalf of, Douglas Wade.
After completing his research, he confirmed that no probate proceedings had been
filed in either parish for Douglas Wade.
The issue before this court is whether Ms. Chatfield had " proper temporary
custody" of Unit 12B at the time of the incident in question such that the " death
Succession occurs at the death of a person." La. Civ. Code art. 934. " Immediately at the death of the decedent, universal successors acquire ownership of the estate and particular successors acquire ownership of the things bequeathed to them. Prior to the qualification of a succession representative only a universal successor may represent the decedent with respect to the heritable rights and obligations of the decedent." La. Civ. Code art. 935. We note, however, that even if the Homesite policy did include language regarding seizin and ownership rather than custody, the record is still devoid of evidence to support a finding that Diana has anything other than usufruct over her deceased husband' s half of the insured property. See La. Civ. Code art. 890.
12 provisions" of the Homesite policy provided coverage herein. As provided by the
Homesite policy, if any person named in the declarations page is deceased, an
insured includes any person having " proper temporary custody" of the property
until appointment and qualification of a legal representative. The words in that
phrase must be interpreted in accordance with their generally prevailing meaning.
La. Civ. Code art. 2047.
Black's Law Dictionary pertinently defines " proper" as "[ a] ppropriate,
suitable, right, fit, or correct; according to the rules ... [ c] onforming to the best
ethical or social usage; allowable, right, and becoming. Black's Law Dictionary
11th ed. 2019). " Temporary" is defined as "[ l] asting for a time only; existing or
continuing for a limited ( usu. short) time; transitory." Black's Law Dictionary
11th ed. 2019). Finally, " custody" is defined as "[ t]he care and control of a thing
or person for inspection, preservation, or security." Black's Law Dictionary ( 11th
ed. 2019).
There is no dispute that Douglas Wade was named in the declarations page
of the Homesite policy and that he was deceased at the time of the incident.
Moreover, there was no evidence of the " appointment and qualification of a legal
representative" of Douglas Wade. As previously indicated, Ms. Chatfield was
living in Unit 12B with the permission of Diana Wade, the owner of Unit 12B and
named insured on the Homesite policy. Ms. Chatfield was not paying rent and was
taking care of the property for her grandmother. At the time of Ms. Tucker's
injuries, Ms. Chatfield had only lived in Unit 12B for approximately seven months.
Based on our de novo review of the evidence offered in support of and in
opposition to Homesite' s motion for summary judgment, we find that the policy at
issue may reasonably be interpreted to provide coverage to Ms. Chatfield for Ms.
Tucker' s claims. Therefore, summary judgment was not appropriate as a matter of
law. Accordingly, the trial court's judgment granting Homesite's motion for
13 summary judgment, decreeing that Homesite owes no defense or indemnity to Ms.
Chatfield, and dismissing all claims made against Homesite, with prejudice, is
hereby reversed.
DECREE
For the above and foregoing reasons, we reverse the trial court's January 10,
2423 judgment and remand for further proceedings. All costs associated with this
appeal are assessed against Homesite Insurance Company.
REVERSED AND REMANDED.