The endorsement does modify, or conflict with, the policy: it simply excepts the policy's exclusion for zoning, but no more. Levy Gardens relies on Bozeman v. Commonwealth Land Title Ins. Co., 470 So.2d 465 (La.App.Ct.1985), for the proposition that an insurer cannot use an endorsement to insure for a known risk and then rely on a contrary exclusion to avoid liability. Commonwealth, however, is not relying on any zoning exclusion in the policy.
The Trust, however, has provided no evidence to support such an agreement. Thus, the Trust's reliance on case such as Bozeman v. Commonwealth Land Title Ins. Co., 470 So.2d 465 (La. Ct. App.), writ denied sub nom. Bozeman v. Com. Land Title Ins. Co., 475 So.2d 359 (La. 1985), is misplaced.
Third-party defendants rely on Bozeman v. Commonwealth Land Title Ins. Co. to support their argument. 470 So.2d 465 (La. Ct. App. 1985). In Bozeman, the Court held that a policy provision excluding coverage for defects would not defeat coverage when the insurer knowingly insured over a defect.
If it be contended that this phrase of the insurance policy is ambiguous, the rule that ambiguities in insurance contracts must be construed in favor of the insured would constrain us to reach the same conclusion. Bozeman v. Commonwealth Land Title Insurance Company, 470 So.2d 465 (La.App. 1st Cir.), writ denied, 475 So.2d 359 (La. 1985); Booth v. Fireman's Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1968). It would be a very simple matter for insurance carriers to write their policies so as to specifically exclude coverage for exemplary damages.
If it be contended that this phrase of the insurance policy is ambiguous, the rule that ambiguities in insurance contracts must be construed in favor of the insured would constrain us to reach the same conclusion. Bozeman v. Commonwealth Land Title Insurance Company, 470 So.2d 465 (La.App. 1st Cir.), writ denied, 475 So.2d 359 (La. 1985); Booth v. Fireman's Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1968). It would be a very simple matter for insurance carriers to write their policies so as to specifically exclude coverage for exemplary damages.
In any event. if there is any ambiguity in this provision, it must be construed in favor of the insured. Bozeman v. Com. Land Title Ins. Co., 470 So.2d 465 (La.App. 1st Cir. 1985), writ denied, 475 So.2d 359 (1985). In view of the lack of detailed information as to the basis and nature of Mr. Dorsey's treatment during the period for which medical expenses are claimed; and, considering Dr. Dawson's specific statement to the effect he had not treated Mr. Dorsey for this condition, we agree with the trial court's conclusion defendant failed to meet its burden of proof.