FRANCIS v. MAKE IT RIGHT NEW ORLEANS LLC (2026)

This matter arises from a class action lawsuit filed by Plaintiffs against the Make It Right Foundation; Make It Right-New Orleans, LLC; and Make It Right - New Orleans Housing, LLC (collectively, the “MIR defendants”), and numerous officers, directors, and/or board members of the MIR defendants, including Relator, Brad Pitt (“Pitt”). Pitt seeks review of the trial court's December 12, 2025 judgment which granted the motions for partial summary judgment of Respondents, TIG Insurance Company (“TIG”) and First Mercury Insurance Company (“First Mercury”), as to whether they owed Pitt a duty to indemnify and defend. For the reasons that follow, we grant Pitt's writ application and vacate the trial court's judgment granting Respondents’ motions for partial summary judgment.

FACTUAL AND PROCEDURAL HISTORY

On September 7, 2018, Plaintiffs filed a class action lawsuit against the MIR defendants. Thereafter, Plaintiffs filed first, second, and revised second supplemental and amending petitions for damages (collectively, the “Petitions”).  ¹ In general, the Petitions alleged the MIR defendants and/or Pitt hired architects and contractors to build over one hundred residences for Plaintiffs and that construction defects in the houses have resulted in damages to their homes, other personal property, and bodily injuries.

The MIR defendants and Pitt filed a third party demand against their insurers, which included Respondent, First Mercury.² Subsequently, Relator also filed a third party demand against Respondent, TIG.³ First Mercury filed a cross-claim against TIG seeking indemnification.

On May 23, 2025, First Mercury filed a motion for partial summary judgment, asserting it had no duty to defend and indemnify the MIR defendants based on the allegations raised in Plaintiffs’ Petitions. TIG also filed a motion for partial summary judgment against the MIR defendants and Pitt on the duty to defend on August 20, 2025. Pitt, the MIR defendants, and Plaintiffs opposed Respondents’ motions for partial summary judgment.

Plaintiffs, with leave of court, filed their Third Supplemental and Amending Petition (“Third Amended Petition”) on September 30, 2025.

After a hearing on the motions for partial summary judgment, the trial court rendered judgment on December 12, 2025, granting the motions with respect to Plaintiffs’ “original, first supplemental, and second amended and revised second amended petition.” The trial court found that “neither First Mercury nor TIG have any duty to defend or indemnify the defendants for the claims asserted in those petitions.” From this judgment, Pitt filed the present notice of intent to seek supervisory writs.

STANDARD OF REVIEW

An appellate court applies a de novo standard of review in considering lower court rulings on summary judgment motions. Sims on Behalf of Williams v. Samuel J. Green Charter Sch. Field, 2024-0277, p. 4 (La. App. 4 Cir. 12/2/24), 408 So.3d 213, 216. On review, appellate courts apply the same burden of proof established by La. C.C.P. art. 966(A)(3). Eckstein v. Stratus Sys., Inc., 2023-0554, p. 4 (La. App. 4 Cir. 2/26/24), 384 So.3d 1049, 1051. That article provides that “[a]fter an opportunity for adequate discovery, a 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.”

Generally, the burden of proof on a motion for summary judgment rests with the mover. La. C.C.P. art. 966(D)(1). However, “if the mover will not bear the burden of proof at trial, the mover must only point out the absence of factual support for one or more elements essential to the adverse party's claim.” Pers. Touch Prop. Grp., LLC v. Jones, 24-0023, p. 2 (La. App. 4 Cir. 4/4/24), 390 So.3d 297, 299 (quoting PCOF Props., L.L.C. v. Joseph, 21-0341, p. 3 (La. App. 4 Cir. 12/1/21), 332 So.3d 220, 222). La. C.C.P. art. 966(3) “The granting of summary judgment is contingent upon the pleadings, depositions, answers to discovery, admissions on file and affidavits demonstrating that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law.” Majoue v. Fish, 23-0549, p. 5 (La. App. 4 Cir. 3/8/24), 385 So.3d 321, 325. Genuine issues are ones in which reasonable persons could disagree. Id. “[I]f reasonable persons could only reach one conclusion, there is no need for trial on that issue, and summary judgment is appropriate.” Id. “A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute.” Id.

INTERPRETATION OF AN INSURANCE POLICY

The interpretation of an insurance policy usually involves a legal question which can be resolved properly in the framework of a motion for summary judgment. Thebault v. American Home Assur. Co., 15-0800, p. 5 (La. App. 4 Cir. 4/20/16), 195 So.3d 113, 116 (citations omitted). An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Id., 15-0800, p. 5, 195 So.3d at 116-17. Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. La. C.C. art. 2047; See Batiste v. City of New Orleans, 11-1168, pp. 3-4 (La. App. 4 Cir. 2/29/12), 85 So.3d 800, 801. In case of doubt, exceptions to coverage are strictly construed against the insurer. See Lirette v. Adams, 22-0552, p. 23 (La. App. 4 Cir. 1/31/23), 382 So.3d 122, 137.

“Generally the insurer's obligation to defend suits against its insured is broader than its liability for damage claims.” Certain Underwriters at Lloyd's of London v. Duxworth Roofing & Sheetmetal, Inc., 22-0821, p. 9 (La. App. 4 Cir. 7/18/23), 370 So.3d 1144, 1150 (quoting Yount v. Maisano, 93-1276 (La. 11/29/1993), 627 So.2d 148, 153). “The insurer's duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff's petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage.” Id. A duty to defend is determined solely from the plaintiff's pleadings and on the face of the policy. Certain Underwriters, 2022-0821, pp. 9-10, 370 So.3d at 1150 (citing Collier v. Williams-McWilliams Co. Inc., 459 So.2d 719, 724 (La. App. 4th Cir. 1984)).

This Court has recognized that the “issue of whether a liability insurer has the duty to defend a civil action against its insured is determined by application of the ‘eight corners rule,’ under which an insurer must look to the ‘four corners’ of the plaintiff's petition and the ‘four corners’ of its policy to determine whether it owes that duty.” Choice Found. v. Law Indus., LLC, 22-0411, pp. 6-7 (La. App. 4 Cir. 10/26/22), 351 So.3d 746, 751 (quoting Plaia v. Stewart Enter., Inc., 2014-0159, p. 35 (La. App. 4 Cir. 10/26/16), 229 So.3d 480, 504 (citation omitted)). The duty to defend is not contingent upon the outcome of the litigation; rather the duty is triggered where the pleadings disclose “even a possibility of liability” under the insurance contract. See Suire v. Lafayette City-Parish Consol. Gov't, 04-1459, p. 18 (La. 4/12/05), 907 So.2d 37, 52.

ASSIGNMENTS OF ERROR

Relator alleges the trial court erred in the following respects:

(1) The trial court erred in refusing to consider Plaintiffs’ Third Supplemental and Amended Petition in determining whether Respondents had a duty to defend and indemnify;

(2) The trial court erred in failing to follow binding Louisiana jurisprudence that disputed issues of fact precluded summary judgment where Plaintiffs alleged damages, which, if proven, would not be unambiguously precluded from the scope of coverage provided within the policies to Relator;

(3) The trial court erred in reading language into the “Your Product” exclusion when it applied the “Your Product” exclusion to bodily injury claims; despite the language of the “Your product exclusion applying only to “property damage;” and

(4) The trial court erred in granting relief to First Mercury—which it did not pray for—where First Mercury did not file a summary judgment motion against Pitt.

DISCUSSION

Disputed Issues of Fact; Policy Terms

Pitt's first claims the trial court erred in not considering the claims raised in Plaintiffs’ Third Supplemental and Amended Petition in its decision to grant Respondents’ motions for partial summary judgment.⁴ We note that Plaintiffs’ Third Supplemental and Amended Petition was filed after Respondents’ motions for partial summary judgment. As such, we will begin our review with Pitt's contentions that the trial court erred in not finding that facts and allegations contained in Plaintiffs’ Petitions pending at the time of the summary judgment motions precluded summary judgment relief and the trial court misinterpreted the policies’ terms and exclusions.

In granting summary judgment, the trial court determined that the “the most essential part” of Plaintiffs’ claims in the Petitions “fall squarely under TIG's and First Mercury's policies work product exclusions.”⁵

Pitt counters that Plaintiffs’ claims for damages are not limited exclusively to structural property damage, but also claims for bodily injury. In particular, Relator cites that Plaintiffs’ first amended petition states that all defendants failed to inform them of systemic material, construction, and design defects and their negligent actions amounted to continuing torts which caused Plaintiffs to suffer “ascertainable financial loss and mental distress as a result of Defendants’ negligence.” Pitt specifies the Petitions allege Plaintiffs have suffered “non-economic losses or injuries,” including “Physical Personal Injury Tort Claims” emanating from exposure to toxins, health risks, gas leaks, and “Mental Distress Claims, including negligent infliction of emotional distress. Additionally, Pitt points out that Plaintiffs’ first amended petition iterates that Plaintiffs “have and will continue to suffer mental distress as some of the conditions of their home caused mold growth and other risks to health,” including exposure to natural gas. Pitt adds that the policies’ definition of product-completed operation hazard also provides coverage.

 Mental Anguish

Pitt argues Plaintiffs’ mental anguish claims fall within the policies’ definition of bodily injury. He references that the policies define bodily injury as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.” Pitt emphasizes the policies apply to bodily injury or property damage caused by an “occurrence” that takes place in the covered territory. As defined in the policies, an “occurrence” means “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” However, First Mercury and TIG contend that the conduct which allegedly caused Plaintiffs’ mental anguish did not constitute an “occurrence” as defined in the policies because the alleged conduct was not accidental.

In Johnson v. Orleans Par. Sch. Bd., 2006-1223 (La. App. 4 Cir. 1/30/08), 975 So.2d 698, this Court recognized that “claims for emotional distress to be claims for ‘bodily injury’ for purposes of insurance coverage.” Johnson, 2006-1223, p. 23, 698 So.2d at 714 (citing Crabtree v. State Farm Ins. Co., 93–0509 (La.2/28/94), 632 So.2d 736). This Court noted that in Crabtree, the Supreme Court held that emotional injuries are “sickness or disease,” because “[w]hile such an experience operates primarily on the mind of the victim such suffering cannot be isolated from the body.” 632 So.2d at 743. The Johnson Court held that the “personal injury liability” provision in the defendant insurer's policy provided coverage for the plaintiffs’ emotional distress claims. In applying Johnson to the mental anguish/emotional injuries claims raised in Plaintiffs’ Petitions, we find the allegations trigger the possibility of the Respondents’ liability under the insurance contracts.

 Products-Completed Operations Hazard

Pitt asserts the trial court erred because Plaintiffs alleged damages, if proven, go beyond the ‘work and “your product” exclusions under the policies. Instead, he maintains Plaintiffs’ alleged damages would not unambiguously exclude coverage under the policies’ definitions for products-completed operations hazard (“PCOH”). Pitt references that the First Mercury policies ⁶ state, in relevant part, that PCOH:

a. Includes all “bodily injury” and “property damage” occurring away from premises you own or rent and arising out

b. of “your product” or “your work” except:

(1) Products that are still in your physical possession;

or

(2) Work that has not yet been completed or abandoned․ Work that may need service, maintenance; correction, repair or replacement, but which is otherwise complete, will be treated as completed․

The Louisiana Supreme Court set forth the relationship between a “work product” exclusion and “products-completed operations hazard” provision in a commercial general liability policy in Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, pp. 16-17 (La. 5/22/07), 958 So.2d 634, 645, as follows:

In reviewing both the “work product” exclusion and the PCOH [products-completed operation hazard] provision, we find no contradiction in their language. Under the “work product” exclusion, the insured or its subcontractor becomes liable for damages to its work or its product caused by its faulty workmanship. Under the PCOH provision, damages, other than the faulty product or work itself, arising out of the faulty workmanship are covered by the policy. Stated differently, if a subcontractor's faulty electrical work caused the building to burn down before completion, the “work product” exclusion would eliminate coverage for the faulty electrical work performed by the contractor or subcontractor. However, the operations hazard coverage applies not to the faulty work, but damages arising out of the faulty work. Damage to real property arising out of the faulty work (fire damage) would not be excluded as it would be covered under the PCOH provision.

In the present matter, Pitt points out that Plaintiffs’ Petitions have alleged numerous construction defects which caused bodily injury and property damage to non-defective work or property. The record reveals that the Petitions raise causes of action of Unfair Trade Practices; breach of contract; detrimental reliance, negligence; continuing tort, fraud, intentional infliction of emotional distress; breach of legal obligation of warranty; loss of use and relocation. Plaintiffs’ Petitions also aver that they have incurred damages resulting from the growth of mold and bacteria, air quality problems, structural, and diminution of value in their properties.

Upon review, Plaintiffs’ Petitions may also be construed to include requests for relief from damages arising out of the defendants’ alleged faulty work. Pursuant to Supreme Servs, “damages to real property arising out of the faulty work would not be excluded as it would be covered under the PCOH.” 06-827, p. 17, 985 So.2d at 645. Therefore, based on our de novo of the policies’ terms, exclusions, and the allegations raised in Plaintiffs’ Petitions, we cannot say that the eight corners of the policies unambiguously preclude any duty for Respondents to defend and indemnify Pitt.

We also take judicial notice that adequate discovery has not taken place on the merits of Plaintiffs’ complaint in accordance with La. C.C.P. art. 966A(3). Consequently, Respondents cannot show that no genuine issues of disputed facts remain regarding the facts alleged and the scope of the damages claimed in Plaintiffs’ Petitions to entitle Respondents to summary judgment relief. The grant of summary judgment was premature. Accordingly, we find merit to Pitt's position that the trial court erred because genuine issues of dispute facts remain and the policies’ provisions do not conclusively preclude coverage for the claims raised in Plaintiffs’ Petitions.

Having determined that the policies do not unambiguously preclude a duty to defend and indemnify and the trial court's grant of summary judgment was premature, we pretermit discussion of Pitt's remaining assignments of error.

DECREE

Based on the foregoing assigned reasons, we grant Pitt's writ application and vacate the trial court's December 12, 2025 judgment granting Respondents’ motions for partial summary judgment.

WRIT GRANTED; JUDGMENT VACATED

FOOTNOTES

1.   Plaintiffs have also filed suit against 50 unnamed “John Doe” contractors and architects. No discovery on the merits has taken place in this matter pursuant to a March 2, 2022 court order which limited discovery to pre-certification issues. The hearing on class certification is fixed for August 26, 2026. Hence, none of the “John Doe” contractors have been added as named defendants.

2.   The record shows that First Mercury issued five Comprehensive General Liability (“CGL”) policies to the MIR defendants and Relator which collectively covered the policy periods of March 27, 2014 through April 26, 2019.

3.   The record shows that American Safety Indemnity Company, TIG's predecessor, issued four-occurrence based CGL policies and four excess policies to the MIR defendants and Relator which collectively covered the policy periods March 27, 2010 through March 27, 2014.

4.   In the Third Supplemental and Amended Petition, Plaintiffs specifically alleged, in part, that they “suffered economic losses and/or property losses and/or emotional distress” as a result of the actions and omissions of Defendants and /or their subcontractors. Plaintiffs also alleged that all or part of the construction was performed by “general contractors and subcontractors” on behalf of the MIR defendants.

5.   The TIG policy, in part, included the following exclusions:j. Damage To Property“Property damage” to:․(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; or(6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it ․k. Damage To Your Product “Property damage” to “your product” arising out of it or any part of it.l. Damage To Your Work “Property damage” to “your work” arising out of it or any part of it and included in the “products-completed operations hazard”.This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.m. Damage To Impaired Property Or Property Not Physically Injured “Property damage” to “impaired property” or property that has not been physically injured, arising out of:(1) A defect, deficiency, inadequacy or dangerous condition in “your product” or “your work.” ․* * *The First Mercury policies, provided, in pertinent part the following:2. ExclusionsThis insurance does not apply to:* * *j. Damage To Property “Property damage” to:(1) Property you own, rent, or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property;(2) Premises you sell, give away or abandon, if the “property damage” arises out of any part of those premises;(3) Property loaned to you;(4) Personal property in the care, custody or control of the insured;(5)That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; or(6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.Paragraphs (1), (3) and (4) of this exclusion do not apply to “property damage” (other than damage by fire) 1D premises, including the contents of such premises, rented to you for a period of 7 or fewer consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as described in Section III- Limits Of Insurance.Paragraph (2) of this exclusion does not apply if the premises are “your work” and were never occupied, rented or held for rental by you.Paragraphs (3), (4), (5) and (6) of this exclusion do not apply to liability assumed under a sidetrack agreement Paragraph (6) of this exclusion does not apply to “property damage” included in the “products completed operations hazard.”k. Damage To Your Product “Property damage” to “your product” arising out of it or any part of it.l. Damage To Your Work “Property damage” to “your work” arising out of it or any part of it and included in the “products completed operations hazard.” This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.m. Damage To Impaired Property Or Property Not Physically Injured “Property damage” to “impaired property” or property that has not been physically injured, arising out of:(1) A defect, deficiency, inadequacy or dangerous condition in “your product” or “your work”; or(2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms.This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to “your product” or “your work” after it has been put to its intended use.

6.   The policy definition of PCOH in the TIG policy is essentially the same.

Judge Sandra Cabrina Jenkins