SHANE SALANTHE v. IN RE SHANE SALATHE (2017)

WRIT GRANTED.

In this writ application, Shane Salathe, relator, seeks review of the trial court's grant of partial summary judgment in favor of respondent, Amerisure Mutual Insurance Company (hereinafter “Amerisure”). For the following reasons, we grant this writ application, reverse summary judgment, and remand this matter for further proceedings.

Facts and Procedural History

On November 7, 2014, Jefferson Parish (hereinafter “the Parish”) and Fleming Construction Company, LLC (hereinafter “Fleming”) entered a contract “for replacement or restoration of existing sewer mains (gravity or force)” in Jefferson Parish. That contract required Fleming to procure certain insurance policies including a commercial general liability policy and an owner's and contractor's protective (hereinafter “OCP”) liability policy.

On or about December 1, 2014, Fleming procured from Amerisure an OCP policy bearing Policy Number GL 20943750102, identifying the Parish as the named insured and Fleming as the designated contractor for coverage during the sewer repair contract for the period December 1, 2014 to December 1, 2016.

On January 8, 2015, the Parish issued a “Work Order” to Fleming to “Change all 4 Discharge Base Elbows, rails & all piping in wet wells” at Lift Station E7-6 in Metarie. On February 5, 2015, relator, a Fleming foreman, went down into the wet well to perform his work. When relator attempted to exit the wet well, the hatch door failed and slammed, which knocked relator off the ladder. That day, relator fell almost thirty feet to the bottom of the well and suffered a traumatic brain injury and paraplegia.

On May 1, 2015,¹ relator filed a petition for damages, naming, among others, the Parish and Amerisure as defendants. On April 6, 2017, Amerisure filed its motion for partial summary judgment arguing that the OCP policy in question is a “specialized policy that only provides coverage to the [Parish] for two specific claims: 1) any vicarious liability the [Parish] may have for the negligence of [Fleming] or 2) any claim that the [Parish] negligently supervised the work of Fleming.” Amerisure attached a copy of the OCP policy to its motion. Later, Amerisure supplemented their motion with discovery responses, the contract between the Parish and Fleming, the depositions of two Parish Employees, and the relator's deposition. On July 10, 2017, relator filed his opposition to Amerisure's motion for partial summary judgment with supporting documents including deposition excerpts from Parish employees and an affidavit from the Parish's Director of Purchasing.

At the close of the summary judgment hearing, the trial court granted summary judgment on this issue after finding “that the response in discovery and the facts of the case do not lend themselves to the broad construction interpretation of the phrase ‘general supervision’ in the Amerisure policy as argued by the Plaintiff.” On October 4, 2017, the trial judge signed the written judgment, granting partial summary judgment in favor of Amerisure and dismissing relator's claims with respect to the OCP policy. Relator seeks review of that ruling.

Law and Argument

Appellate courts review motions for summary judgment de novo, asking the same questions as the trial court to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773, 776. Specifically, an appellate court must determine whether any genuine issues of material fact exist and whether the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A fact is “material” if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of a legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. In determining whether there are any genuine issues of material fact, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Davis v. Scottsdale Ins. Co., 13-255 (La. App. 5 Cir. 10/30/13), 128 So. 3d 471, 475-77

The interpretation of an insurance policy is usually a legal question that can be properly resolved on a motion for summary judgment. Robinson v. Heard, 01-1697 (La. 2/26/02), 809 So.2d 943, 945. However, a summary judgment declaring 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 shown by the evidence in support of the motion for summary judgment, under which coverage could be afforded. Davis, supra.

An insurance policy is a contract between the parties and has the effect of law between them. Bryant v. United Services Auto. Ass'n., 03-3491, 04-28 (La. 9/9/04), 881 So.2d 1214, 1221. The intent of the parties, as reflected by the words of the insurance policy, determines the extent of coverage. Louisiana Insur. Guar. Ass'n. v. Interstate Fire and Casualty Co., 93-911 (La. 1/14/94), 630 So.2d 759, 763. If the words of the insurance policy are clear and express the intent of the parties, the agreement must be enforced as written. Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183. Any ambiguity in the terms of the policy must be construed against the drafter and in favor of the insured. Id.

In this writ application, relator argues that the trial judge erred in granting Amerisure's motion for summary judgment because there is, at least, a genuine issue of material fact regarding whether the OCP policy purchased by Fleming in favor of the Parish provided coverage for this incident.

Section I of the OCP liability coverage form issued to the Parish “c/o Fleming Construction Co., LLC” provides, in pertinent part, as follows:

1. Insuring Agreement

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages.

***

b. This insurance applies to “bodily injury” and “property damage” only if:

(1) The “bodily injury” or “property damage” is caused by an “occurrence” and arises out of:

(a) Operations performed for you by the “contractor” at the location specified in the Declarations; or

(b) Your acts or omissions in connection with the general supervision of such operations;

(2) The “bodily injury” or “property damage” occurs during the policy period; and

2. Exclusions

This insurance does not apply to:

d. Acts Or Omissions By You And Your Employees “Bodily injury” or “property damage” arising out of your, or your “employees”, acts or omissions other than general supervision of “work' ” performed for you by the “contractor.” (Emphasis in original).

In order for there to be coverage under the OCP policy for the incident in this case, the “bodily injury” must be caused by an “occurrence” that arises out of operations performed for the Parish by Fleming at a specified location OR by the Parish's acts or omissions in connection with the general supervision of such operations. The parties frame the issue to be resolved in order to determine coverage under the OCP policy as whether the Parish had general supervision over Fleming's operations.

Upon de novo review, we find that there are genuine issues of material fact that preclude summary judgment at this stage of the litigation. The supporting documents to the motion for summary judgment and the opposition reveal that, in his deposition, Mr. Salathe testified that the Parish generally oversaw the progress of Fleming's work to ensure that progress was being made. Further, Billie Hartline, the Parish's superintendent in charge of lift station inspections at the time of Mr. Salathe's accident, testified that the Parish oversaw Fleming's work. Bruce Cook, the Parish's engineering inspector and project coordinator, confirmed he was the project coordinator and engineering inspector in charge of Fleming's work at the time of Mr. Salathe's accident. Mr. Cook specifically stated, “[M]y job is to go there and like document the progress that the contractor is making.” Here, summary judgment declaring lack of coverage under an insurance policy was inappropriate as there are supporting documents that establish a genuine issue of material fact with respect to a reasonable interpretation of the term “general supervision” in this policy.

Accordingly, after de novo review of the motion for summary judgment, opposition, memoranda, and exhibits, we find that genuine issues of material fact preclude summary judgment in favor of Amerisure at this time. This writ is hereby granted and summary judgment reversed.

Gretna, Louisiana, this 14th day of November, 2017.

SMC

FHW

HJL

FOOTNOTES

1.   O June 15, 2016, relator filed a Supplemental and Amended Petition.