SUCCESSION OF JESSE WIMBERLY IV v. WILLIAM CHAD BROWN STRONGBUILT CONSTRUCTION SERVICES LLC AND WILSHIRE INSURANCE COMPANY (2026)

Third-party defendant, Crum & Forster Specialty Insurance Company (Crum), appeals the trial court's partial summary judgment finding Crum had a duty to defend its insured, Southern Services & Equipment, Inc. (Southern), and denying Crum's cross motion for partial summary judgment. For the following reasons, we affirm that portion of the trial court's judgment finding Crum has a duty to defend Southern, and we vacate that portion of the trial court's judgment denying Crum's cross motion.

FACTS AND PROCEDURAL HISTORY

The Succession of Jesse L. Wimberly, IV, filed suit against William Chad Brown, Strongbuilt Construction Services, and Wilshire Insurance Company alleging deficiencies in the 2019 design and construction of a law office located at 2113 Lakeshore Drive, Mandeville, Louisiana. The original petition was filed on July 17, 2020. First and second supplemental and amending petitions, filed June 28, 2021 and October 11, 2023, respectively, substituted as plaintiffs Jonathan Carroll Wimberly and Jennifer Lauren Wimberly (Plaintiffs) and named as additional defendants Southern, Excel Steel Systems, LLC, and Steel Framing Solutions, LLC.

Southern timely notified Crum, its insurer, of the underlying litigation. Crum denied coverage. Southern filed a third party demand against Crum on June 28, 2022, alleging that Crum was obligated to provide it with a defense in the underlying litigation. Southern further alleged that Crum's denial of coverage and/or a defense was arbitrary, capricious, without probable cause, and in bad faith. Crum answered, again denying coverage and/or a duty to defend.

On February 9, 2024, Southern filed a motion for partial summary judgment declaring that Crum was obligated to defend Southern in the underlying litigation and ordering Crum to defend Southern accordingly. Crum opposed Southern's motion for partial summary judgment. Crum also fax-filed a cross motion seeking partial summary judgment finding that Crum did not owe a duty to defend or indemnify Southern in the underlying litigation; however, the original motion was never filed.

Following an August 20, 2024 hearing, the trial court granted summary judgment in favor of Southern, found Crum owes a duty to defend Southern in the underlying litigation, and denied Crum's cross motion for partial summary judgment. The trial court signed a written judgment in conformity with its oral ruling on September 26, 2024, which provided, in pertinent part, that “[Crum] has a duty under its policy of insurance to defend [Southern] in this litigation.” This appeal followed, in which Crum contends, in a single assignment of error, that the trial court erred in granting Southern's motion for partial summary judgment and in denying Crum's cross motion for partial summary judgment.

APPELLATE JURISDICTION

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. This court's appellate jurisdiction only extends to “final judgments.” A final judgment determines the merits in whole or in part and is appealable. See LSA-C.C.P. arts. 1841 and 2083(A); Markiewicz v. Sun Construction, LLC, 2019-0869 (La.App. 1 Cir. 5/28/20), 304 So.3d 877, 880.

Under LSA-C.C.P. art. 966(E), a summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties. The trial court's September 26, 2024 summary judgment in favor of Plaintiffs on the issue of Crum's duty to defend is a partial summary judgment rendered pursuant to LSA-C.C.P. art. 966(E). At the time the judgment was rendered, LSA-C.C.P. art. 1915(B) authorized the immediate appeal of a partial summary judgment only if it was properly designated as a final judgment by the trial court after a determination that there was no just reason for delay.¹ See Jourdan v. Allmerica Financial Benefit Insurance Company, 2017-1630 (La.App. 1 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.

Here, Crum filed a motion to designate the September 26, 2024 judgment as final pursuant to LSA-C.C.P. art. 1915(A), and alternatively, a notice of intent to apply for a supervisory writ. In an October 23, 2024 order, the trial court designated the judgment as final, explicitly found no just reason for delay, and stated that the designation of the September 26, 2024 judgment as final “will conserve judicial economy by eliminating the possibility of a second trial and the possibility that [the trial court] will be forced to revisit the ruling.” Applying the factors set forth in R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, 1122, we find that the trial court's designation of the partial summary judgment finding Crum has a duty to defend Southern was appropriate, and we have jurisdiction over the appeal. See Lacy v. Ibarra, 2024-0680 (La.App. 1 Cir. 10/22/25), 424 So.3d 729, 732, n.3; Jourdan, 267 So.3d at 629; see also Waste Management of Louisiana LLC v. Stafford Logistics, Inc., 2023-1128 (La.App. 1 Cir. 4/23/25), 409 So.3d 1161, 1167, writ denied, 2025-01419 (La. 1/28/26), 425 So.3d 118.²

However, the denial of Crum's cross motion for partial summary judgment presents a different issue as said motion was not properly filed, as discussed more fully herein.

SUMMARY JUDGMENT

Appellate courts review the grant or denial of summary judgment de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate.³ Awanbor v. Williams, 2025-0054 (La.App. 1 Cir. 8/4/25), 418 So.3d 1043, 1048, writ denied, 2025-01124 (La. 11/12/25), 420 So.3d 708. That is, 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. LSA-C.C.P. art. 966(A)(3).

On a motion for summary judgment, the burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support 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. LSA-C.C.P. art. 966(D)(1).

DUTY TO DEFEND

Whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. Brilliant National Services, Inc. v. Travelers Indemnity Company, 2021-1471 (La.App. 1 Cir. 9/7/22), 349 So.3d 581, 584-85. An insurer's duty to defend suits filed against its insured is distinct from its duty to indemnify and is generally broader than its obligation to provide coverage for damage claims. Arceneaux v. Amstar Corp., 2015-0588 (La. 9/7/16), 200 So.3d 277, 281. 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. Crosstex Energy Services, LP v. Texas Brine Company, LLC, 2017-0863 (La.App. 1 Cir. 12/21/17), 240 So.3d 1024, 1028, writ denied, 2018-0144 (La. 3/23/18), 238 So.3d 962. The insurer's duty to defend is determined by the factual allegations of the petition, which must be liberally interpreted, and the insurer is obligated to furnish a defense unless it is clear from the petition that the policy unambiguously excludes coverage. Thus, assuming the factual allegations of the petition are true, if there could be both coverage under the policy and liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. See Crosstex, 240 So.3d at 1028-1029.

If a petition does not allege facts within the scope of coverage, an insurer is not legally required to defend a suit against its insured. Crosstex, 240 So.3d at 1029. However, when a petition states at least a single factual allegation under which coverage is not unambiguously excluded, the insurer has a duty to accept defense of the entire lawsuit, even though the petition may allege numerous other claims outside of the policy's coverage. See Henly v. Phillips Abita Lumber Co., 2006-1856 (La.App. 1 Cir. 10/3/07), 971 So.2d 1104, 1109; Dennis v. Finish Line, Inc., 636 So.2d 944, 947-948 (La.App. 1 Cir. 1994), writ denied, 94-1652 (La. 10/7/94), 644 So.2d 636; Treadway v. Vaughn, 633 So.2d 626, 628 (La.App. 1 Cir. 1993), writ denied, 635 So.2d 233 (La. 1994). In short, the duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. Arceneaux, 200 So.3d at 282. In contrast, when uncontroverted facts preclude the possibility of a duty to indemnify, the duty to defend ceases and the duty to indemnify is negated. Maldonado v. Kiewit Louisiana Co., 2013-0756 (La.App. 1 Cir. 3/24/14), 146 So.3d 210, 219.

SOUTHERN'S MOTION FOR PARTIAL SUMMARY JUDGMENT

As set forth above, Southern moved for partial summary judgment declaring that Crum was obligated to defend Southern in the underlying litigation and ordering Crum to defend Southern accordingly. Southern bore the initial burden of proof both as the mover on summary judgment and the party seeking coverage. See LSA-C.C.P. art. 966(D)(1); Hill v. TMR Exploration, Inc., 2022-0037 (La.App. 1 Cir. 10/4/22), 353 So.3d 823, 829, writ denied, 2022-01628 (La. 1/11/23), 352 So.3d 989. In support of its motion, Southern filed certified copies of the insurance policies Crum issued to Southern: policy number PKC-110222, for the policy period from October 1, 2020 to October 1, 2021, and policy number PKC-112192, for the policy period from October 1, 2021 to October 1,2022 (collectively, “the policies”).

Pertinently, the only coverage at issue is found in the Errors And Omissions Liability Coverage Part (E&O coverage) of the policies. The common provisions in the policies provide that Crum has “the right and duty to defend” Southern against any suit seeking damages to which the E&O coverage applies. The E&O coverage, which was retroactive to March 23, 2016, provides, in pertinent part:

SECTION I - INSURING AGREEMENT

1. Errors and Omissions Liability

a. We will pay, in excess of the Deductible shown in the Declarations, those sums the insured becomes legally obligated to pay as “damages” or “cleanup costs” because of a “wrongful act” to which this insurance applies. We may, at our discretion, investigate any incident and settle any “claim” or “suit” that may result. But the amount we will pay is limited as described in Section IV - Limits of Insurance And Deductible within the Common Provisions.

b. This insurance applies to “claims” for “damages” or “cleanup costs” resulting from a “wrongful act” only if all of the following conditions are met:

․

(5) That the rendering or failure to render “professional services” is caused by a “wrongful act” that took place within the “coverage territory[.]”

․

The policies include the following relevant definitions:

6. “Claim”:

a. With respect to the ․ Errors and Omissions Liability Coverage Part, means a demand for “damages”.

․

32 .“Professional Services” means those functions performed for others by you or by others on your behalf that are related to your practice as a consultant, engineer, architect, surveyor, laboratory or construction manager.

․

38 .“Your Product”:

a. Means:

(1) Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed by:

(a) You;

(b) Others trading under your name; or

(c) A person or organization whose business or assets you have acquired; and

(2) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products.

․

43.“Wrongful Act” means an act, error or omission in the rendering or failure to render “professional services” by any insured covered under the Insuring Agreement of the Errors and Omissions Liability Coverage Part[.]

Where a policy of insurance contains a definition of any word or phrase, that definition is controlling. Parekh v. Mittadar, 2011-1201 (La.App. 1 Cir. 6/20/12), 97 So.3d 433,438. Conversely, when a contract, including an insurance contract, does not define relevant terms, the words of the contract must be given their generally prevailing meaning. See LSA-C.C. art. 2047; L&A Contracting Company v. State Through Department of Transportation & Development, 2022-1301 (La.App. 1 Cir. 8/16/23), 372 So.3d 14, 23, writ denied, 2023-01353 (La. 12/19/23), 375 So.3d 408.

With the policy provisions and definitions in mind, we consider Plaintiffs’ allegations against Southern as set forth in the first amended petition:⁴

XII.

Upon information and belief, Southern Services was the designer, fabricator and/or manufacturer of certain portions of the office's metal components. In particular, it is believed that Southern Services designed, fabricated and/or manufactured the “red iron” portions of the office's frame.

XIII.

Since the filing of the original Petition in this matter, Plaintiffs have learned through discovery that Southern Services negligently failed to follow the applicable architectural and engineering designs and specifications for the office including, but not limited to, preparation of the I-beam shear tabs and placement / installation of the steel framing onto the existing concrete columns. This resulted in increased material and labor costs to Plaintiffs. Southern Services committed other acts of negligence which will be shown at a trial of this matter.

XIV.

It is believed that Southern Services proceeded with fabrication and installation of the steel framing without first receiving engineering approval of its Shop Drawings.

XV.

As a result of the negligent acts and omissions of Excel and Southern Services, Plaintiffs have incurred increased material and labor costs to correct not only the mistakes of Excel and Southern Services but also the damages flowing from the negligence of Excel and Southern Services.

Here, the policies provide coverage for a wrongful act, error, or omission in the rendering or failure to render “professional services,” defined as “functions performed for others by you or by others on your behalf that are related to your practice as a consultant, engineer, architect, surveyor, laboratory or construction manager.” While Crum correctly argues that Plaintiffs do not explicitly allege that Southern provided services as an engineer, architect, surveyor, laboratory or construction manager, this is not determinative of whether Crum owes Southern a duty to defend.

Louisiana is a fact pleading state that values substance over form and does not require the use of magic titles or terminology as a threshold requirement for validly pleading an action. See Wheat v. Nievar, 2007-0680 (La.App. 1 Cir. 2/8/08), 984 So.2d 773, 776. Thus, Louisiana courts will pierce through the caption, style, and form of the pleadings to determine the nature of the proceeding from the substance of the pleadings. Additionally, our jurisprudence establishes that pleadings are to be construed in light of their allegations as a whole. M. Matt Durand, L.L.C. v. Denton-James, L.L.C., 2011-0784 (La.App. 1 Cir. 3/8/12), 2012 WL 762303, *5 (unpublished). Further, because the policies do not define the terms “consultant, engineer, architect, surveyor, laboratory or construction manager,” these terms must be given their generally prevailing meaning. See LSA-C.C. art. 2047; L&A Contracting, 372 So.3d at 23. Consequently, in order to determine whether Crum owes Southern a duty to defend, we must determine whether Plaintiffs’ factual allegations, when liberally interpreted and accepted as true, can be reasonably construed to state that Southern committed an act, error, or omission in rendering or failing to render professional services as a consultant, engineer, architect, surveyor, laboratory or construction manager. See Crosstex, 240 So.3d at 1028-1029; L&A Contracting Company, 372 So.3d at 23.

We first note that Plaintiffs alleged Southern “designed, fabricated and/or manufactured” certain portions of the metal components of the office; “negligently failed to follow the applicable architectural and engineering designs and specifications”; and “proceeded with fabrication and installation of the steel framing without first receiving engineering approval.” These allegations, particularly the allegation that Southern negligently designed certain portions of the metal components of the office, on the face of the petition, are not limited to allegations of negligent manufacture, fabrication, or installation.⁵ Merriam-Webster Dictionary defines “designer” as “one that designs,” such as “one who creates and often executes plans for a project or structure.” See “designer,” Merriam-Webster Online Dictionary 2026 available at https://www.merriam-webster.com. Merriam-Webster further defines “consultant” as “one who gives professional advice or services.” See “consultant,” Merriam-Webster Online Dictionary 2026 available at https://www.merriam-webster.com. Liberally interpreting Plaintiffs’ allegations, accepting the same as true, and given the general meaning of the terms “designer” and “consultant,” we find that Plaintiffs’ allegations can be reasonably construed as stating that Southern committed an act, error, or omission in rendering or failing to render professional services as a designer, i.e., one who creates and often executes plans for a project or structure, and/or a consultant, i.e., one who gives professional advice or services.

Emphasizing that ail that is required in order for Crum to have a duty to defend is a single factual allegation in the petition under which coverage is not unambiguously excluded, we find that the first amended petition contains factual allegations that could support a finding that Southern's alleged negligence occurred in the rendering or failure to render professional services, sufficient to raise the possibility of liability under the E&O policies. See Henly, 971 So.2d at 1109. Consequently, Southern met its initial burden, and the burden of proof shifted to Crum to prove that the loss falls within a policy exclusion. See LSA-C.C.P. art. 966(D)(1); Hill, 353 So.3d at 829.

In opposition to Southern's motion for partial summary judgment, Crum offered Plaintiffs’ petitions, Southern's third party demand, and certified copies of the policies. Crum argues the “Faulty Workmanship” exclusion and the “Product” exclusion preclude coverage for Plaintiffs’ claims.⁶ These provisions state:

SECTION II - ADDITIONAL EXCLUSIONS

The following additional exclusions apply to the Errors And Omissions Liability Coverage Part in addition to those contained within the Common Provisions:

This Policy does not apply to “damages”, “defense expenses”, “cleanup costs” or any other loss, cost or expense, or any “claim” or “suit”:

․

3. Faulty Workmanship

Based upon or arising out of the cost to repair or replace any faulty workmanship, construction or work not in accordance with your “professional services”.

․

5. Products

Based upon or arising out of “your product”.

As set forth above, where a policy of insurance contains a definition of any word or phrase, that definition is controlling. Parekh, 97 So.3d at 438. Here, the faulty workmanship exclusion precludes coverage for damages based upon or arising out of the cost to repair or replace any faulty workmanship, construction, or work “not in accordance with” Southern's professional services. Additionally, the products exclusion precludes coverage for damage based upon or arising out of Southern's “product,” defined as “[a]ny goods or products, other than real property, manufactured, sold, handled, distributed or disposed by [Southern.]” While these exclusions may arguably preclude coverage for certain aspects of Plaintiffs’ claims, such as the allegations that Southern negligently fabricated and/or manufactured metal components of the office, the exclusions are not broad enough to unambiguously exclude coverage for Southern's allegedly negligent “design” of the metal components. Because the evidence supporting the motion shows that a reasonable interpretation of the policy, when applied to the undisputed facts, could afford coverage in this case, summary judgment is not appropriate. See Boudreaux v. Coco, 2021-1009 (La.App. 1 Cir. 4/28/22), 342 So.3d 354, 360. Accordingly, on our de novo review, we conclude the trial court properly granted Southern's motion for partial summary judgment finding Crum has a duty to defend.

CRUM'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Louisiana Revised Statutes 13:850 provides that a fax filing shall have the same force and effect as filing the original if the filing party complies with certain requirements, including delivering the original document and the required fees to the clerk of court within seven days, exclusive of legal holidays, after the clerk of court receives the fax filing. Here, Crum fax-filed its motion, but failed to file its original motion into the record.⁷ Thus, Crum's fax-filed motion for partial summary judgment was without force or effect. See LSA-R.S. 13:850(C); Threeton v. Progressive Security Insurance Co., 2024-0845 (La.App. 1 Cir. 4/4/25), 2025 WL 1021168, *1 (unpublished); Petit-Blanc v. Charles, 2021-00094 (La. 4/20/21), 313 So.3d 1245, 1247. Because the motion was not properly filed with the trial court, we vacate that portion of the trial court's judgment denying Crum's cross motion.

CONCLUSION

For the foregoing reasons, the September 26, 2024 partial summary judgment in favor of Southern Services & Equipment, Inc., and finding Crum & Forster Specialty Insurance Company has a duty to defend Southern Services & Equipment, Inc., is affirmed. That portion of the trial court's judgment denying Crum's cross motion for summary judgment is vacated. Costs are assessed to Crum & Forster Specialty Insurance Company.

AFFIRMED IN PART; VACATED IN PART.

FOOTNOTES

1.   Louisiana Code of Civil Procedure article 1915 was recently amended and reenacted by La. Acts. 2025, No. 250, § 3. The revisions remove from Paragraph B the authority of the trial court to designate a judgment as final and appealable after an express determination that there is no just reason for delay. As a result, Paragraph A now provides a list of judgments from which an appeal may be taken. This change was intended to remove uncertainty as to whether an appeal or a supervisory writ should be taken from a judgment that does not grant the successful party or parties all of the relief prayed for or may not adjudicate all of the issues in the case. LSA-C.C.P. art. 1915, Comments-2025, Comment (a). Paragraph B retains much of the language of former Paragraph C. The language of Paragraph C is new and provides for interlocutory judgments that are not appealable. See LSA-C.C.P. art. 2083(C) and LSA-C.C.P. art. 1915, Comments-2025, Comment (b). These amendments have prospective application only and shall not apply to appeals and supervisory writs filed prior to August 1, 2025, the effective date of the Act. See La. Acts. 2025, No. 250, § 6. The instant appeal was filed prior to the effective date of the 2025 amendment. Thus, we apply the version of LSA-C.C.P. art. 1915 in effect at the time. See Succession of Overton, 2024-0119 (La.App. 1 Cir. 10/17/25), 423 So.3d 1114, 1120, n.4.

2.   The Louisiana Supreme Court's opinion in Arceneaux v. Amstar Corp., 2015-0588 (La. 9/7/16), 200 So.3d 277, 280-281, also indicates that a partial summary judgment finding an insurer has a duty to defend its insured, which has been designated as final pursuant to LSA-C.C.P. art. 1915(B), may be properly reviewed on appeal.

3.   At the outset, we note that many of Crum's arguments on appeal concern the trial court's reasoning and conclusions. However, appellate courts review judgments and not reasons for judgment. Tucker v. Chatfield, 2023-0343 (La.App. 1 Cir. 11/9/23), 379 So.3d 678, 683. In fact, judgments are often upheld on appeal for reasons different than those assigned by a trial court. 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. Because we review summary judgments de novo, we afford no deference to the trial court's underlying reasoning for its judgment, nor do we afford deference to the legal standard or analysis applied by the trial court. Rather, we 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 LSA-C.C.P. art. 966(A)(3); Tucker, 379 So.3d at 684.

4.   Generally, the most recently amended complaint provided to the insurer is examined to determine whether there is a duty to defend. See Maldonado, 146 So.3d at 218. Here, however, all of the allegations as to Southern are set forth in the first amended petition.

5.   We note that Crum also argues it does not owe a duty to defend because Plaintiffs hired Southern to “provide and install a product.” However, the eight-corners rule limits our review to the policies and the petition, and the petition does not contain this allegation. See Crosstex, 240 So.3d at 1030.

6.   Originally, Crum also argued there was no coverage under the Policies because Southern had knowledge of the claim before the policy period commenced on October 1, 2020. However, this argument is not supported by the record and is not raised on appeal.

7.   We note that the Clerk of the Twenty-Second Judicial District Court supplemented the appellate record with a November 13, 2025 letter stating, in pertinent part:It has come to our attention that the Appeal record did not have the Motion for Summary Judgment included. After reviewing our records, the Motion for Summary Judgment was fax-filed on April 24, 2025. However, the attorney did not file the original Motion for Summary Judgment with our office. The Motion for Summary Judgment did not go out for service due to the original Motion for Summary Judgment not being filed by counsel.

MCCLENDON, C.J.

Stromberg, J Concurs