MARCHAND v. NEW ORLEANS PUBLIC FACILITY MANAGEMENT INC LLC ABC XYZ (2026)

This case is an insurance coverage dispute. It arises from a tort claim filed by Percy Marchand (“Plaintiff”) who alleged he suffered injuries at the New Orleans Ernest M. Morial Convention Center (“Convention Center”). The claim was filed against New Orleans Public Facility Management, Inc. (“Appellant”) (d/b/a New Orleans Ernest N. Morial Convention Center), Cleaning Concierge, LLC, and other parties. Appellant filed a cross-claim which included Cleaning Concierge's insurer, Kinsale Insurance Company (“Appellee”). Appellee filed a Motion for Summary Judgment and it was granted by the trial court. Appellant appeals. For the reasons described below, we reverse.

Facts

Plaintiff sustained injuries while riding an “ice slide” at Christmas Fest held at the Convention Center on December 29, 2021. While attempting to sit in the inner tube designed for the slide, Plaintiff accidentally slid down the slide without the tube and collided with the slide wall and the floor, causing injury. As a result, Plaintiff had a broken leg that needed pins and plates to repair.

Prior to this incident, Appellant entered into an agreement with Cleaning Concierge to provide “General Labor” as well as “contractual liability insurance․” for the Appellant. The agreement requires Cleaning Concierge's insurer to:

“indemnify, defend․ [Appellant] and their agents and employees from and against all claims, damages, losses and expenses․ arising out of or resulting from the performance of the Work provided that any such claim․ is attributable to bodily injury․ [and] is caused in whole or in part by any negligent act or omission of [Cleaning Concierge]․”  1

As required by this agreement, Cleaning Concierge contracted an insurance policy with Appellee. This policy contained a “Classification Limitation Exclusion” which stated, “[t]his insurance applies only to the operations that are described in the DESCRIPTION OF OPERATIONS․” On a separate page, the description of operations was labeled as, “Janitorial and Building Maintenance Contractor.” Further, there is an endorsement in Appellee's policy for “ADDITIONAL INSURED – OWNERS․” This endorsement states,

“Who Is An Insured is amended to include ․ an additional insured ․ but only with respect to liability for “bodily injury” ․ caused, in whole or in part ․ in the performance of [Cleaning Concierge's] ongoing operations for the additional insured(s)․ However: ․ if coverage provided to the additional insured is required by ․ [an] agreement, the insurance afforded to such․ will not be broader than that which you are required by the․ agreement to provide․”

Plaintiff originally filed suit on December 16, 2022, and after several amendments, alleged negligence against Appellant, Cleaning Concierge, Ice Rink Events of Ohio, Inc., and IRE Crown Rinks, LLC. The following is a summary of the claims:

(1) Failure to exercise reasonable care in the inspection and maintenance of the premises and equipment they furnished, including the Ice Slide;

(2) Failure to develop and implement procedures for use, maintenance, repair, and operation of the Ice Slide to ensure safety, including, but not limited to providing proper training and supervision to personnel; and

(3) Disregarding the manufacturer's specifications regarding requirements and/or recommendations related to the Ice Slide's installation, modification, configuration, operation, repair, service, inspection, warning, signage, and/or maintenance.

One of the allegations against Cleaning Concierge and Appellant includes:

“PLAINTIFF'S injuries were caused․ by the joint and/or separate negligence of [Appellant], [and/or] CLEANING CONCIERGE, LLC․ including․ Failure to develop, issue and/or provide proper policies and procedures and/or to actually adhere to such policies․ related to․ maintaining [the] Ice Slide and/or premises in a reasonably safe condition․”

(Emphasis added).

On April 17, 2024, Appellant filed a cross-claim against Cleaning Concierge and its insurer, Appellee, alleging that Cleaning Concierge is liable for the negligence claims because they were contracted for “General Labor” and Appellant is covered as an “additional insured” under the Appellee's policy.

On February 18, 2025, Appellee filed a Motion for Summary Judgment, regarding the cross-claim, asserting that the allegations in the petition are not covered by its policy under its “Classification Limitation Exclusion.” Attached to the motion were (1) the amended petition that named Cleaning Concierge and Appellee, (2) the cross-claim, (3) the insurance policy, and (4) an affidavit from Appellee's claim counsel to certify the policy. Because of the Classification Limitation Exclusion, Appellee argued that the injuries do not arise out of “cleaning, repairing, or upkeeping of a permanent structure” but rather “because of negligence in building, operating and/or working on an Ice Slide amusement attraction․” which is not included in Janitorial and Building Maintenance. After multiple motions to continue and a hearing, the trial court agreed and granted the Motion for Summary Judgment.

Assignments of Error

The Appellant brings two assignments of error, (1) the trial court erred in determining that Appellee's citations to allegations in pleadings satisfied its burden of proof under La. C.C.P. art. 966; (2) the trial court erred in determining the policy's use of “Janitorial and Building Maintenance” operations in the Classification Limitation Exclusion was unambiguous and that it evaded the rule of strict construction for negligence and premises liability claims.

It should be noted that these assignments of error were not raised in Appellant's opposition to the Motion for Summary Judgment. The objections raised were: (1) the attached affidavit did not certify the policy, and (2) Summary Judgment was premature because Cleaning Concierge and Appellee had not been deposed. Appellee argues that these assignments of error should be subject to the “waiver rule.” See, e.g., In re Precept Credit Opportunities Fund, L.P., 2021-0428, p. 5 (La.App. 4 Cir. 1/19/22), 366 So.3d 409, 413, writ denied, 2022-00341 (La. 5/10/22), 337 So.3d 910. However, Appellant contends that this Court can still analyze whether Appellee met its burden of proof. Since Appellee failed to meet its burden of proof, the burden never shifted to Appellant. See Pugh v. St. Tammany Par. Sch. Bd., 2007-1856, p. 6 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 100, writ denied, 2008-2316 (La. 11/21/08), 996 So.2d 1113. We agree with Appellant. Additionally, this Court may look at other potential errors in the case and is not restricted to only reviewing the assignments of error. La. C.C.P. art. 2164 (See also In re Med. Review Panel of Morris, 96-1771, p. 6 (La.App. 4 Cir. 11/12/97), 703 So.2d 723, 726, writ granted in part, judgment amended, 98-0119 (La. 3/20/98), 715 So.2d 1197). As will be discussed, the issue of “ambiguity” brought in the second assignment of error is the correct standard in this context and was presented forth in Appellee's memorandum for the Motion for Summary Judgment. As this Court has stated, “the fact that plaintiff's counsel did not explicitly advance this argument in his opposition to the summary judgment does not preclude our consideration of the issue.” In re Med. Review Panel of Morris, 96-1771, 703 So.2d at 726 (See also Goldstein v. Chateau Orleans, Inc., 2020-0401, p. 18-19 (La. App. 4 Cir. 11/12/21), 331 So. 3d 1027, 1040–41, writ denied, 2021-01852 (La. 2/15/22), 332 So. 3d 1183).

Standards of Law

The summary judgment procedure is favored because it “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2). The “motion for summary judgment shall be granted if the motion, memorandum, and supporting documents 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(A)(3).

An appeal stemming from a summary judgment “is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” 2309-11 Washington Ave. Tr. v. Lisa-Raye Investments, LLC, 2025-0550, p. 3 (La.App. 4 Cir. 10/30/25), 423 So.3d 1152, 1155 (citing Planchard v. New Hotel Monteleone, LLC, 2021-00347, pp. 2-3 (La. 12/10/21), 332 So.3d 623, 625) (emphasis added). Likewise, “[t]he interpretation of an insurance policy is [also] normally a question of law, which the appellate court reviews de novo ․” Lombard v. Nobre, 2023-0746, p. 24-25 (La.App. 4 Cir. 6/18/24), 398 So.3d 1, 19.

A “genuine issue” is defined as a “triable issue, or one as to which reasonable persons could disagree․.” Bridgewater v. New Orleans Reg'l Transit Auth., 2015-0922, p. 5 (La.App. 4 Cir. 3/9/16), 190 So.3d 408, 412, writ denied, 2016-0632 (La. 5/20/16), 191 So.3d 1071. Therefore, “a fact is ‘material’ when its existence or non-existence may “insure or preclude recovery․.” Id. In the insurance context, if a policy “is determined to be ambiguous, an issue of material fact exists; and the matter is not ripe for summary judgment․.” Wagner v. Tammany Holding Co., LLC, 2013-0374, p. 7 (La.App. 4 Cir. 10/9/13), 135 So.3d 77, 82. “[I]f any doubt or ambiguity exists as to the meaning of a provision in an insurance policy, it must be construed in favor of the insured and against the insurer․.” Gibbs Constr., L.L.C. v. Nat'l Rice Mill, L.L.C., 2017-0113, p. 11 (La.App. 4 Cir. 2/21/18), 238 So.3d 1033, 1041, writ denied, 2018-0464 (La. 5/11/18), 241 So.3d 1012. This includes situations “[w]hen the ambiguity relates to an exclusionary clause, the law requires that the contract be interpreted liberally in favor of coverage․.” Id. Finally, a “[s]ummary 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․ under which coverage could be afforded.” Cosey v. Flight Acad. of New Orleans, LLC, 2019-0757, p. 5 (La.App. 4 Cir. 5/13/20), 364 So.3d 226, 231.

The duty to defend is the obligation for an insurance company to defend the insured against any potential liability claims. To determine if there is a duty to defend, the court must look within the confines of the allegations of the petition along with the policy. This is commonly referred to as the “eight-corners rule.” Washington Ave., 423 So.3d at 1155 (citing Perniciaro v. McInnis, 2018-0113, p. 10 (La. App. 4 Cir. 9/7/18), 255 So.3d 1223, 1231). Again, this issue may hinge on if there is any ambiguity in the policy. “[T]he insurer is obligated to furnish a defense unless the petition unambiguously excludes coverage.” Arceneaux v. Amstar Corp., 2015-0588, p. 5 (La. 9/7/16), 200 So.3d 277, 281–82 (citing Steptore v. Masco Const. Co., 93–2064, p. 8, (La. 8/18/94), 643 So.2d 1213, 1218) (emphasis added). “Generally the insurer's obligation to defend suits against its insured is broader than its liability for damage claims.” Washington Ave., 423 So.3d at 1155.

The duty to defend is different from the duty to indemnify. “The rule of indemnity is based upon the general obligation to repair the damage caused by one's fault under La. C.C. art. 2315.” Bennett v. DEMCO Energy Servs., LLC, 2023-01358, p. 3 (La. 5/10/24), 386 So.3d 270, 273 (citing Nassif v. Sunrise Homes, Inc., 98-3193 (La. 6/29/99), 739 So.2d 183). This Court will not determine if indemnity is owed in this case. Therefore, we will not determine if there is a definite duty for the Appellee to indemnify.

Analysis

 Additional Insured

“Additional insured agreements are contractual agreements that require one party, known as the named insured, to procure liability insurance and name the other party as an additional insured on the policy.” Andrew Hughes, Constructing Clearer Policy: Reconsidering Louisiana's Anti-Indemnity Regime for Additional Insured Agreements in Public Construction Contracts, 84 La. L. Rev. 1, 4 (2023). These agreements usually occur between contractors and the owners of the property. The contractor, or the named insured, will purchase liability insurance and pay the premiums on it. The owner, or the additional insured, receives the benefit of the insurance without paying and is protected if the contractor is alleged to be negligent.

In the instant case, Cleaning Concierge is the named insured and Appellant is the additional insured. As previously stated, the agreement requires Appellee to defend and indemnify the Appellant. This means that the duty to defend, if present, automatically extends to the Appellant.

 Classification Limitation Exclusion

As previously stated, the Appellee's policy given to Cleaning Concierge contains a Classification Limitation Exclusion that limits coverage to the description of operations. The Appellee argues that there is no coverage because “Janitorial and Building Maintenance” does not include coverage involving an “amusement attraction” such as the ice slide. However Appellant, in the second assignment of error, argues that the Classification Limitation Exclusion language is ambiguous. We agree.

It is unclear from the record who was actually responsible for guiding riders onto the ice slide. It is also uncertain whether Cleaning Concierge was responsible for clearing the melted ice from the platform on the top of the slide. The Plaintiff clearly alleged that he fell from the platform, presumably because of slippery conditions. The answers to these questions would help paint a clearer picture on which allegations are covered under the policy.

According to the jurisprudence, ambiguity means that the exclusion should be interpreted in favor of coverage rather than against it. Gibbs, 238 So.3d at 1041. Since coverage under the policy is ambiguous, this matter is not ripe for summary judgment.

 Duty to Defend

The law clearly states that insurance companies do have a duty to defend unless the allegations in the petition “unambiguously [exclude] coverage.” Arceneaux, 200 So.3d at 282. Jurisprudence also says that if there is no other “reasonable interpretation” then the summary judgment can be granted. Cosey, 364 So.3d at 231.

Not only is coverage ambiguous, but the allegations in the petition state the word “maintenance” multiple times. The Petition filed by the Plaintiff alleges repeatedly that Cleaning Concierge did not exercise proper “maintenance.” For example, Plaintiff alleges that Cleaning Concierge and Appellant were negligent in “[failing] to develop, issue and/or provide proper policies and procedures and/or to actually adhere to such policies․ related to․ maintaining [the] Ice Slide and/or premises in a reasonably safe condition․” (emphasis added) This allegation alone fits squarely in the category of “building maintenance.” This combined with the complicated analysis of what constitutes as a “building” in Louisiana further adds ambiguity to the issue. Since the exclusion language does not unambiguously exclude coverage, the Appellee still has a duty to defend Cleaning Concierge and Appellant.

Conclusion and Decree

Because of the above reasons, the summary judgment is reversed and the case shall be remanded for further proceedings.

REVERSED AND REMANDED

FOOTNOTES

1.   It should be noted that the agreement was not included in the Record. This excerpt is from Appellant's Cross-Claim.

Chief Judge Roland L. Belsome