WASTE MANAGEMENT OF LOUISIANA LLC v. STAFFORD LOGISTICS INC (2025)

This matter is before us on appeal by Crum & Forster Specialty Insurance Company (“Crum & Forster”) from a judgment of the trial court granting a cross-motion for summary judgment in favor of Waste Management of Louisiana, LLC d/b/a Woodside Landfill and Waste Management National Services, Inc. (“Waste Management”) finding that Waste Management is an additional insured under a Crum & Forster policy, finding coverage under the Crum & Forster policy for the claims asserted by Wendell and Tonya Fisher against Waste Management, and ordering Crum & Forster to defend and indemnify Waste Management for all claims asserted by the Fishers, thereby requiring Crum & Forster to repay Waste Management “for all amounts paid to settle the Fisher Lawsuit.” For the reasons that follow, we affirm in part, vacate in part, and remand.

FACTS AND PROCEDURAL HISTORY

This insurance coverage dispute arises from an accident that occurred on August 2, 2016, involving a driver for Stafford Logistics, Inc. d/b/a Custom Ecology, Inc. (hereinafter “CEI”), Wendell Fisher, who fell into a pit containing non-hazardous materials while unloading a truck at Waste Management's Woodside Landfill. At the time of the accident, Mr. Fisher was completing the movement of non-hazardous waste from Honeywell International to the Woodside Landfill. Mr. Fisher lost his balance while removing a strap holding the waste container onto the trailer and, as a result of various factors, including alleged slippery conditions on the ground and a lack of railing, fell into a mixing basin containing liquid waste, and sustained injury. Mr. Fisher and his wife filed suit against Waste Management, which ultimately resulted in a settlement.¹

Waste Management filed the instant suit seeking defense and indemnification pursuant to its Master Transportation Service Agreement (“MTSA”) with CEI and damages for bad faith denial of coverage against CEI and its insurers: Starr Indemnity & Liability Company (“Starr”), CEI's commercial auto liability insurer; Axis Surplus Insurance Company (“Axis”), CEI's excess auto liability insurer; Scottsdale Insurance Company (“Scottsdale”), CEI's second excess auto liability insurer; and Crum & Forster, CEI's commercial general liability insurer.² Waste Management's excess liability insurer, Ace American Insurance Company (“Ace”), intervened against Crum & Forster, Starr, Axis, and Waste Management seeking a declaration that it was entitled to recover the entire amount it contributed to funding the settlement, repayment of all amounts paid by way of settlement, and attorney's fees and costs.

Crum & Forster filed a motion for summary judgment contending that the “use of an auto” exclusion in its commercial general liability policy, which is defined to exclude coverage for loading and unloading an auto, precluded coverage for the accident herein. Crum & Forster thus contended that neither Waste Management, as an additional insured, nor Ace, as the subrogee of an additional insured, could recover the amounts they paid to settle the Fishers’ suit.³

Starr filed a motion for summary judgment contending that no coverage was afforded under its auto liability policy for any claim that did not involve “ownership, maintenance, or use” of a covered auto. Starr thus contended that where Fisher's petition made no allegations that Waste Management's use of a covered auto was in any way involved in the accident, Starr was entitled to dismissal of Waste Management's claims against it. Axis likewise filed a motion for summary judgment contending that there was no coverage under Starr's policy, and its excess auto liability policy only paid sums in excess of the “underlying insurance.”

Waste Management filed a cross-motion for summary judgment against Starr seeking coverage under its auto liability policy, and against Axis and Scottsdale for excess coverage. Waste Management contended that it was covered as an “additional insured” under Starr's auto liability policy because the CEI tractor and trailer were “being used” by Mr. Fisher, who was in the process of unloading the trailer at the time of the accident.⁴

Waste Management contemporaneously filed a cross-motion for summary judgment against Crum & Forster contending that its MTSA with CEI required that CEI maintain coverage for Waste Management as an additional insured for all operations under the MTSA and thus, it was entitled to coverage under Crum & Forster's commercial general liability policy for Mr. Fisher's accident allegedly caused by the condition of the ground and lack of railing around the mixing basin at its Woodside landfill facility. Waste Management asserted that coverage was afforded under both the auto and general liability policies because Mr. Fisher's injuries had two concurrent causes: (1) the purported condition of the premises at Woodside Landfill; and (2) the use of his truck. Waste Management maintained that any liability associated with the premises of the Woodside Landfill was covered by the commercial general liability insurance policy issued by Crum & Forster, and thus sought a declaration of coverage under its policy.

Crum & Forster opposed the motion, again contending that Mr. Fisher's injuries arose during the process of unloading his waste delivery truck, and thus the auto use exclusion in its policy precluded coverage.

In sum, Crum & Forster claimed the incident was auto related and thus not covered under its policy, Starr and Axis argued the accident was not auto related and thus not covered under its policies, and Waste Management contended that coverage existed under both policies given the dual, concurrent causes of the accident.

The motions were heard by the trial court on December 13, 2021. At the conclusion of the hearing, the trial court denied Crum & Forster's motion for summary judgment; granted Waste Management's cross-motion for summary judgment finding that Waste Management was an additional insured under Crum & Forster's commercial general liability policy and was thus entitled to coverage under the policy; denied Waste Management's cross-motion for summary judgment against Starr, Axis, and Scottsdale finding that a material issue of fact remained as to Mr. Fisher's employment status at the time of the accident; and denied the motions for summary judgment by Starr and Axis, finding a material issue of fact remained as to whether coverage was afforded under their commercial auto and excess commercial auto policies. In conformity with its rulings at the hearing, the trial court signed a judgment on April 20, 2022, which:

• DENIED the motions for summary judgment by Starr and Axis;

• DENIED Waste Management's cross-motion for summary judgment against Starr, Axis, and Scottsdale finding that a material issue of fact remained as to Mr. Fisher's employment status at the time of the accident;

• DENIED Crum & Forster's motion for summary judgment; and

• GRANTED Waste Management's cross-motion for summary judgment against Crum & Forster and ORDERED that:

(a) the commercial general liability policy issued by Crum & Forster to CEI provided coverage to Waste Management for the claims asserted by the Fishers;

(b) the commercial general liability policy issued by Crum & Forster required Crum & Forster to defend and indemnify Waste Management for all claims made in the Fisher lawsuit; and

(c) plaintiffs were additional insureds under the Crum & Forster policy and, as such, Crum & Forster are required to repay Waste Management and its insurer, Ace, for all amounts paid to settle the Fisher lawsuit.

Starr and Axis filed an application for supervisory writs with this Court seeking review of the trial court's denial of their motions for summary judgment. On review, another panel of this Court determined that the auto liability policies afforded no coverage or duty to defend where the complained-of conduct by the alleged tortfeasor did not involve the use of an automobile. This Court thus granted the motions for summary judgment filed by Starr and Axis and dismissed all claims against them. See Waste Management of Louisiana LLC v. Stafford Logistics, Inc., 2022-0601 (La. App. 1st Cir. 11/8/22), 2022 WL 16758547 (unpublished). Thereafter, Waste Management voluntarily dismissed its claims against Scottsdale with prejudice.

Following the dismissal of the auto liability insurers, Waste Management and Ace filed a motion to designate the April 20, 2022 judgment as a final judgment pursuant to La. C.C.P. art. 1915.⁵ The trial court heard the matter, which was opposed by Crum & Forster, and on February 28, 2023, issued a judgment granting the motion and certifying the April 20, 2022 judgment finding coverage in favor of Waste Management and against Crum & Forster as a partial final judgment.⁶ The judgment determined that there was no just reason for delay in designating the judgment as a partial final judgment and that such designation will serve the interests of judicial efficiency.⁷ The trial court further ordered that all pending matters were stayed pending exhaustion of all appellate delays.⁸

Crum & Forster now appeal contending that the trial court erred in granting Waste Management's motion for summary judgment on “all coverage issues” when the only issue before the court was whether coverage was barred by Crum & Forster's auto exclusion; that Waste Management did not “raise the issue” of whether it was an additional insured under the policy; that Waste Management did not establish that the Fishers’ claims against it fell within the scope of coverage available to Waste Management as an additional insured under the policy; and in finding coverage under its policy because Waste Management judicially confessed that the claims asserted by the Fishers against it were outside the scope of coverage.⁹

SUMMARY JUDGMENT

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(A)(3)¹⁰ ; Lucas v. Maison Insurance Company, 2021-1401 (La. App. 1st Cir. 12/22/22), 358 So. 3d 76, 83-84.

The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. See La. C.C.P. art. 966(A)(2). The purpose of a motion for summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Harris v. Tractor Supply Company, 2023-0337 (La. App. 1st Cir. 10/30/23), 377 So. 3d 726, 732, writ denied, 2023-01489 (La. 1/17/24), 377 So. 3d 245. After an opportunity for adequate discovery, 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). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4).

On a motion for summary judgment, the initial burden of proof is on the mover. See La. C.C.P. art. 966(D)(1); Lucas, 358 So. 3d at 84. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover may point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, summary judgment shall be granted unless the adverse party can produce factual evidence sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See La. C.C.P. art. 966(D)(1).

The trial court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. La. C.C.P. art. 966(D)(2). In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether there is a genuine issue of material fact. Collins v. Franciscan Missionaries of Our Lady Health System, Inc., 2019-0577 (La. App. 1st Cir. 2/21/20), 298 So. 3d 191, 194, writ denied, 2020-00480 (La. 6/22/20), 297 So. 3d 773. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So. 2d 730, 751; see also Farrell v. Circle K Stores, Inc., 2022-00849 (La. 3/17/23), 359 So. 3d 467. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Smith, 639 So. 2d at 751.

Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment. Green v. Johnson, 2016-1525 (La. App. 1st Cir. 1/10/18), 241 So. 3d 1188, 1191. An insurance policy is a conventional obligation that constitutes the law between the insured and the insurer, and the agreement governs the nature of their relationship. Supreme Services and Specialty Company, Inc. v. Sonny Greer, Inc., 2006-1827 (La. 5/22/07), 958 So. 2d 634, 638, citing La. C.C. art. 1983. An insurance policy is a contract, which must be construed employing the general rules of interpretation of contracts. Supreme Services and Specialty Company, Inc., 958 So. 2d at 638, citing La. C.C. arts. 2045-2057. If the insurance policy's language clearly expresses the parties’ intent and does not violate a statute or public policy, the policy must be enforced as written. However, if the insurance policy is susceptible to two or more reasonable interpretations, then it is considered ambiguous and must be liberally interpreted in favor of coverage. Allen v. Southwest Builders, L.L.C., 2022-1344 (La. App. 1st Cir. 8/24/23), 372 So. 3d 32, 37.

Liability insurance policies should be interpreted to effect, rather than to deny coverage. Allen, 372 So. 3d at 37. However, it is well-settled that unless a statute or public policy dictates otherwise, an insurer may limit liability and impose such reasonable conditions or limitations upon its insureds. In these circumstances, unambiguous provisions limiting liability must be given effect. The insurer bears the burden of proving that a loss falls within a policy exclusion. Supreme Services and Specialty Company, Inc., 958 So. 2d at 638-639.

The interpretation of the additional insured endorsement is a question of law, which requires examination of the specific language of the endorsement to determine its meaning. Maldonado v. Kiewit Louisiana Co., 2013-0756 (La. App. 1st Cir. 3/24/14), 146 So. 3d 210, 219.

DISCUSSION

At the outset, we note that Waste Management's cross-motion for summary judgment against Crum & Forster sought a “judgment as a matter of law against Defendant, Crum & Forster ․ with respect to its policy.” Moreover, Waste Management specifically sought coverage under the policy “as an additional insured” for the work being performed by Mr. Fisher when he was injured while working for CEI pursuant to the MTSA. Accordingly, we initially find no merit to Crum & Forster's argument that the trial court erred in granting summary judgment on “all coverage issues” when the issue of coverage under its policy was placed squarely before the court.

Waste Management, as the movers on summary judgment, had the initial burden of proving that: (1) it was an additional insured under Crum & Forster's commercial general liability insurance policy; and (2) that as an additional insured, it was entitled to coverage under the policy for the claims alleged against it by the Fishers. See La. C.C.P. art. 966(D)(1). In support of its motion for summary judgment, Waste Management attached various documents, including: its MTSA with CEI; the affidavit of Agnes Reiss/Crum & Forster policy; the Fishers’ petition for damages; Stafford Logistics (CEI) Stipulation and Admission of Fact; Mr. Fisher's deposition transcript; the affidavit of Jill Bryant/CEI Service Ticket and certification of title for trailer no. 672; and Crum & Forster's memorandum in support.¹¹

According to the Fishers’ petition for damages and Mr. Fisher's deposition testimony, at the time of the accident, Mr. Fisher was transporting materials for CEI to Waste Management's Woodside Landfill, and, after exiting his truck, and as he was “ratcheting” to undo the back binder on the driver's side of his trailer, the handle came out, he lost his balance, and fell into a twenty-foot-deep mixing basin sustaining injury.

According to the MTSA entered into by CEI and Waste Management on July 10, 2003, CEI agreed to furnish motor carrier services to transport waste materials for Waste Management. In a Stipulation and Admission of Fact, CEI stipulated that the MTSA was in effect and had not expired or otherwise been terminated. Pursuant to the MTSA, CEI agreed to maintain various types and levels of insurance, including workers’ compensation, employer's liability, comprehensive general liability, automobile, and pollution liability insurance. CEI further agreed to provide insurance coverage to Waste Management as an additional insured under its policies, as evidenced by the following language in the MTSA:

10. Insurance. [CEI] agrees to maintain as a minimum during the term of this Agreement the following types and levels of insurance:

* * *

(f) [CEI] agrees to have insurance certificates forwarded to [Waste Management] within five (5) days after the execution of this Agreement by the parties. [Waste Management] and [Waste Management's] Customer will be named as additional insured. [CEI's] insurance shall be primary to all insurance carried by [Waste Management]. Further, [CEI] shall include a cross-liability (severability-of-interests) clause in the coverages. Such certificates shall provide that the coverage shall not be decreased, otherwise modified, altered or terminated without thirty (30) days prior written notice thereof being given to Waste Management by the insurance carrier. The insurance described herein shall be maintained for the term of this Agreement and set forth minimum amounts and types of coverage, and not to be construed in any way as a limitation of [CEI's] liability under this Agreement, and shall be written by companies having a Best's Rating of B or better, or approved by [Waste Management].

Through the MTSA, CEI also agreed to indemnify and hold harmless Waste Management, in accordance with the indemnification provision, which provides as follows:

11. Indemnification. [CEI] agrees to indemnify and save harmless Customer, [Waste Management], and any corporate affiliates, their present and future officers, directors, employees, agents, subcontractors and assignees, from and against any and all liabilities, penalties, fines, forfeitures, demands, claims, causes of action, suits, and costs and expenses incidental thereto (including cost of defense, settlement, and reasonable attorney's fees), which any or all of them may hereafter suffer, incur, be responsible for, or pay out as a result of bodily injuries (including death) to any person, damage (including loss of use) to any property (public or private), contamination of or adverse effects on the environment, or any violation or alleged violation of statutes, ordinances, orders, rules or regulations of any governmental entity or agency, directly or indirectly caused by, or arising out of any breach of this Agreement or any act or omission of [CEI], its employees, subcontractors, agents or others acting on behalf of [CEI] in the performance of this Agreement.

Waste Management attached Crum & Forster's comprehensive general liability insurance policy (EPK-111060) affording coverage to CEI contending that the policy provided coverage to CEI as a named insured for the period of December 31, 2015, through December 31, 2016, for sums the insured becomes legally obligated to pay as damages for bodily injury caused by an occurrence. The policy contained two Additional Insured Endorsements, which Waste Management contends affords it coverage under the policy. The policy was authenticated by the affidavit of Crum & Forster's agent, Agnes Reiss.

The endorsement, entitled “Additional Insured - Designated Person or Organization,” modified the commercial general liability coverage to include the following as additional insureds:

SECTION III - WHO IS AN INSURED within the Common Provisions is amended to include as an additional insured the person(s) or organization(s) indicated in the Schedule shown above, but solely with respect to “claims” caused, in whole or in part, by “your work” or out of premises owned by or rented to you.

The “Schedule” referred to in Section III named the additional insured persons or organizations as those “Where Required By Written Contract.”

“Your work” is defined in the policy as:¹²

(1) Work or operations performed by you or on your behalf; and

(2) Materials, parts or equipment furnished in connection with such work or operations.

Thus, applying this endorsement to the instant matter, Waste Management is named as an additional insured, as required by the MTSA (a written contract), with respect to “claims”¹³ caused, in whole or in part, by CEI's work.¹⁴

The documents set forth by Waste Management in support of its motion for summary judgment established that Mr. Fisher was working for CEI at the time of the accident; that CEI was covered as a named insured under Crum & Forster's commercial general liability policy; that the MTSA required CEI to provide insurance coverage to Waste Management as an additional insured under its policies and indemnify Waste Management for its employees or subcontractors; that CEI procured commercial general liability insurance for Waste Management as an additional insured as required by the MTSA; and that the policy provided coverage for the claim herein.¹⁵

On review, we find that Waste Management met its burden of establishing that Mr. Fisher was at the Woodside Landfill performing work for CEI at the time of the accident herein, such that Waste Management is an additional insured under Crum & Forster's commercial general liability policy. We further find that Waste Management established that the “claim” arose, in whole or in part, by CEI's work performed by Mr. Fisher at Waste Management's facility, such that, the claims brought by the Fishers in the suit against the insured, Waste Management, are covered.

Having determined Waste Management carried its initial burden, the burden shifted to Crum & Forster to produce factual support sufficient to establish the existence of a material issue of fact or that Waste Management was not entitled to judgment as a matter of law. See La. C.C.P. art. 966(D)(1). If Crum & Forster failed to produce sufficient factual support with its opposition to prove the existence of a genuine issue of material fact, La. C.C.P. art. 966(D)(1) mandates the granting of the motion for summary judgment. See Louisiana Property Development, LLC v. U.S. National Title Insurance Company, 2022-0163 (La. App. 1st Cir. 9/16/22), 353 So. 3d 153, 159, citing Jenkins v. Hernandez, 2019-0874 (La. App. 1st Cir. 6/3/20), 305 So. 3d 365, 371, writ denied, 2020-00835 (La. 10/20/20), 303 So. 3d 315.

Crum & Forster opposed the motion for summary judgment contending that no coverage was afforded under its policy. Crum & Forster contends on appeal that even if the policy endorsements applied herein to include Waste Management as an additional insured, coverage as an additional insured is precluded where Waste Management has judicially confessed that the claims against it arose completely out of its own negligence in failing to maintain a safe premise. Otherwise stated, Crum & Forster contends that because Waste Management has judicially confessed that the claims asserted by the Fishers are premises liability claims arising from Waste Management's own negligent conduct, the claims are not within the scope of additional insured coverage granted by the policy.

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. La. C.C. art. 1853. An admission in a pleading falls within the scope of a judicial confession and is full proof against the party making it. A judicial confession must be explicit and not merely implied. Ray v. Lynx Production Services, Inc., 2023-0839 (La. App. 1st Cir. 2/23/24), 384 So. 3d 1018, 1025-1026, writ denied, 2024-00460 (La. 6/19/24), 386 So. 3d 315. In order to establish a judicial confession on summary judgment, the party urging same must attach the pleadings that establish the judicial confession. Cf. Ray, 384 So. 3d at 1026 (in support of its motion for partial summary judgment, the party urging the judicial confession attached: (1) the original petition for damages; (2) the first amended petition for damages; and (3) the answer to the original petitions for damage as amended by the first amended petition and second amended petition).

In its opposition to Waste Management's cross-motion for summary judgment, Crum & Forster notes that, “[t]he exhibits to this Opposition were initially filed with Crum & Forster's Motion for Summary Judgment, but are attached hereto as referenced for the [c]ourt's convenience.” However, on the record before us there are no exhibits attached to its memorandum in opposition. Instead, throughout its opposition memorandum, Crum & Forster cites to exhibits found elsewhere in the record or attached to its earlier filed motion for summary judgment. Moreover, Crum & Forster concedes in its brief on appeal that the statements, which purportedly form judicial confessions by Waste Management, were “made by Waste Management in the documents filed with this [c]ourt in response to the summary judgment motion filed by [Crum & Forster].”

Under the version of La. C.C.P. art. 966 in effect herein, parties were required to attach all documents in support of or in opposition to the motion for summary judgment to their motion or opposition, and the court could not consider other materials in the record. See La. C.C.P. art. 966(A)(4) and (D)(2); La. C.C.P. art. 966 Comments—2015, comments (c) and (k); Stonetrust Commercial Insurance Company v. TBT Contracting, Inc. of Louisiana, 2022-0972 (La. App. 1st Cir. 6/20/23), 370 So. 3d 494, 501 (“[A] party seeking summary judgment may not reference documents located elsewhere in the record when those documents were not specifically filed in support of, or in opposition to, the motion for summary judgment.”); Troncoso v. Point Carr Homeowners Association, 2022-0530 (La. App. 1st Cir. 1/10/23), 360 So. 3d 901, 915 (“Materials [referenced] elsewhere in the record cannot be considered on summary judgment.”); James as Co-Trustees of Addison Family Trust v. Strobel, 2019-0787 (La. App. 1st Cir. 6/24/20), 2020 WL 3446635, *3-4 (unpublished) (mover on summary judgment was precluded from referencing two documents that were filed in the record as exhibits attached to the plaintiffs’ motion for summary judgment on the main demand). Thus, to the extent that Crum & Forster refers to other exhibits appearing in the record, including the summary judgment evidence it offered in support of its previous, separate motion for summary judgment, we note that we cannot consider those documents in reviewing Waste Management's motion, because they were not specifically filed in support of or in opposition to the Waste Management's cross-motion for summary judgment. See Huggins v. Amtrust Insurance Company of Kansas, Inc., 2020-0516 (La. App. 1st Cir. 12/30/20), 319 So. 3d 362, 366-367. By our decision herein, we make no determination as to whether the purported declarations constitute judicial confessions.

Given Crum & Forster's failure to properly file any pleadings establishing a judicial confession, or otherwise produce any factual support to establish the existence of a material issue of fact or that Waste Management is not entitled to judgment as a matter of law, we find that Crum & Forster has failed to rebut Waste Management's showing that it was an additional insured under the policy and was entitled to coverage as an additional insured under the policy for the claim herein. Accordingly, finding no merit to Crum & Forster's arguments on appeal, we affirm the judgment of the trial court granting Waste Management's cross-motion for summary judgment.

Finally, while the judgment indicated that as a consequence of ordering Crum & Forster to “defend and indemnify Waste Management for all claims made in the Fisher Lawsuit” that Crum & Forster was required to “repay Waste Management and its insurer, ACE American Insurance Company, for all amounts paid to settle the Fisher Lawsuit,” we note that the setting of a specific amount or award for indemnification was beyond the scope of the motion for summary judgment and further note that no evidence was offered on summary judgment to establish the amount of indemnification “including cost of defense, settlement, and reasonable attorney's fees” or any quantifiable amount under the policy or the MTSA. See La. C.C.P. art. 966(F). We have no evidence of the amount of costs or attorney's fees and offer no opinion as to the reasonableness of such fees. Thus, considering the lack of evidence to support these amounts, we find it necessary to vacate the portion of the judgment that orders repayment of “all amounts paid,” and we remand this matter to the trial court to proceed in accord with our ruling herein.

CONCLUSION

For the above and foregoing reasons, the February 28, 2023 judgment certifying the April 20, 2022 judgment as final is affirmed. The portions of the April 20, 2022 judgment granting Waste Management of Louisiana, LLC d/b/a Woodside Landfill and Waste Management National Services, Inc.’s cross-motion for summary judgment and finding that Waste Management of Louisiana, LLC d/b/a Woodside Landfill and Waste Management National Services, Inc. is an additional insured under the Crum & Forster Specialty Insurance Company policy, finding coverage under the Crum & Forster Specialty Insurance Company policy for the claims asserted by the Fishers, and ordering Crum & Forster Specialty Insurance Company to defend and indemnify Waste Management of Louisiana, LLC d/b/a Woodside Landfill and Waste Management National Services, Inc. for all claims asserted by the Fishers is affirmed. The portion of the judgment requiring Crum & Forster Specialty Insurance Company to repay Waste Management of Louisiana, LLC d/b/a Woodside Landfill and Waste Management National Services, Inc. “for all amounts paid to settle the Fisher Lawsuit” is vacated. This matter is remanded to the trial court.

Costs of this appeal are assessed against the defendant/appellant, Crum & Forster Specialty Insurance Company.

APRIL 20, 2022 JUDGMENT AFFIRMED IN PART; VACATED IN PART; AND REMANDED.

I disagree with the majority's conclusion that the trial court's certification of this appeal was proper under RJ. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113. Considering the Messinger factors in light of the circumstances of this case, and in an effort to avoid piecemeal litigation and promote judicial efficiency, I would not have found the designation of this partial summary judgment as final and appealable to be proper under LSA-C.C.P. art. 1915(B). Moreover, I note that the judgment, while it ordered Crum & Forster to “repay Waste Management and its insurer, ACE American Insurance Company, for all amounts paid to settle the Fisher Lawsuit,” does not specify those amounts. Therefore, I respectfully dissent.

FOOTNOTES

1.   The Fishers’ lawsuit was settled for a confidential amount, which was not disclosed in the record before us in the instant litigation.

2.   Waste Management's claims for breach of duty of good faith and fair dealing were asserted against defendants Crum & Forster, Starr, and Axis.

3.   Crum & Forster later supplemented its summary judgment evidence with deposition excerpts that were “inadvertently omitted” when it filed its original motion.

4.   Scottsdale did not file a motion for summary judgment. However, in opposition to Waste Management's cross-motion for summary judgment, it adopted the arguments set forth by Starr and Axis, contending that, as a second excess auto liability insurer of CEI, its coverage followed the Starr and Axis policies, and was not triggered until Starr and Axis's coverage was exhausted.

5.   There is no time delay for filing a motion to certify a judgment as final. Tramontin v. Tramontin, 2010-0060 (La. App. 1st Cir. 12/22/10), 53 So. 3d 707, 712.

6.   In doing so, the trial court, reading from its April 20, 2022 judgment, reiterated its finding that plaintiffs were additional insureds under the Crum & Forster policy and its order that Crum & Forster pay Waste Management and Ace for all amounts paid to settle the Fisher lawsuit.

7.   The trial court's judgment, granting summary judgment in favor of the plaintiffs on the issue of insurance coverage, is a partial judgment. See La. C.C.P. art. 966(E). A partial summary judgment rendered pursuant to Article 966(E) may be immediately appealed during ongoing litigation only if it has been properly designated as a final judgment by the trial court, such was done herein. La. C.C.P. art. 1915(B)(1) (“[T]he judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.”); Jourdan v. Allmerica Financial Benefit Insurance Company, 2017-1630 (La. App. 1st Cir. 11/30/18), 267 So. 3d 627, 629, writ denied, 2018-2086 (La. 2/18/19), 265 So. 3d 775, and writ denied, 2018-02105 (La. 2/18/19), 265 So. 3d 776.

8.   The stay included, but was not limited to, Waste Management's motion for a protective order and a second motion for summary judgment filed by Crum & Forster.

9.   We recognize that Crum & Forster's argument on appeal, i.e., that Waste Management failed to establish it was entitled to coverage under its policy as an additional insured, was not urged below. Instead, Crum & Forster opposed the motion arguing that Mr. Fisher's injuries arose from the use of an auto, and that the policy's auto exclusion precluded coverage. Nonetheless, to the extent that the April 20, 2022 judgment specifically ordered that “plaintiffs are additional insureds under the Crum & Forster Policy,” Crum & Forster has every right to challenge that finding on appeal, when, on our de novo review, we are required to determine whether Waste Management met its burden of establishing that it was entitled to coverage under the policy, which encompasses this argument. In doing so, however, we are limited to a review of the evidence presented by the parties in support of and in opposition to Waste Management's cross-motion for summary judgment. See Brilliant National Services, Inc. v. Travelers Indemnity Company, 2021-1472 (La. App. 1st Cir. 9/7/22), 349 So. 3d 606, 611 n.7.

10.   Louisiana Code of Civil Procedure article 966 was amended and reenacted by La. Acts 2023, No. 317, § 1 and La. Acts 2023, No. 368, § 1, which were effective August 1, 2023. This court has determined that the amendments are substantive and cannot be applied retroactively. See Ricketson v. McKenzie, 2023-0314 (La. App. 1st Cir. 10/4/23), 380 So. 3d 1. Accordingly, in the instant matter, we apply the version of La. C.C.P. art. 966 in effect at the time the motions for summary judgment were submitted and heard.

11.   Other documents submitted by Waste Management included: correspondence from Crum & Forster to Mr. Schulte and Mr. Cudziol; the affidavit of Renae Borgerding/Starr policy; the affidavit of Maryann Vorndran/Axis policy; Scottsdale Commercial Excess Liability policy; vehicle and lease agreement; Lockhart tender of defense; Geiger, Laborde & Laperouse correspondence to BSCR (Starr denial of coverage); Starr memorandum in support; and the affidavit of Louis G. Fey/Fey expert opinion.In its opposition to the motion, Crum & Forster objected to the affidavit of Louis G. Fey.

12.   The Common Provisions of the policy explain the usage and definition for the terms “you” and “insured” as follows:Throughout this Policy the words “you” and “your” refer to the First Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this Policy. ․ The word “insured” means any person or organization qualifying as such under Section III Who Is An Insured.The policy identifies as named insureds both Stafford Group, LLC and Custom Ecology, Inc., such that Stafford and CEI are the “you”/“your” in the policy. As an additional insured in Section III, Waste Management is an “insured.”

13.   The policy defines “claim” as “a demand for ‘damages’.” “Damages” is defined as “the monetary amount of any judgment, award or settlement that an insured becomes legally obligated to pay as a result of a ‘claim’ or ‘suit’.”

14.   Because we find Waste Management is an additional insured under this endorsement to the policy, we pretermit as unnecessary the application of other policy endorsements.

15.   The policy provides that Crum & Forster “will pay, in excess of the Deductible shown in the Declarations, those sums that the insured becomes legally obligated to pay as ‘damages’ for ‘bodily injury’ or ‘property damage’ to which this insurance applies” and further provides that “the amount we will pay for ‘damages’ is limited as described in Section IV - Limits Of Insurance And Deductible within the Common Provisions.”

MILLER, J.

McClendon, C.J. dissents and assigns reasons.