Opinion
NO. 2018 CW 1104
04-09-2019
SIDNEY JOSEPH MABILE v. DOW CHEMICAL COMPANY, THE, ET AL
In Re: Bituminous Casualty Corporation (currently known as Bitco General Insurance Corporation), applying for supervisory writs, 18th Judicial District Court, Parish of Iberville, No. 72095. BEFORE: MCDONALD, CRAIN, AND HOLDRIDGE, JJ.
WRIT GRANTED IN PART, DENIED IN PART. The July 25, 2018 judgment denying the Motion for Summary Judgment filed by Bituminous Casualty Corporation is reversed in part. Under our de novo review, we find that the mover sufficiently established, through discovery responses, that The Dow Chemical Company would be unable to carry its burden at trial. La. Code Civ. P. art. 966(D)(1). The summary judgment evidence established that the Agreement for Services between The Dow Chemical Company and Westgate, Inc., a company that later merged with Industrial Electrical Constructors, Inc., was made effective on March 26, 1975. The evidence also established that any of the insurance policies issued by Bituminous Casualty Corporation to Industrial Electrical Constructors, Inc. had expired or were terminated prior to the March 26, 1975 effective date of the Agreement for Services. Because The Dow Chemical Company failed to produce any evidence showing that it could establish its burden of proof at trial that a policy of insurance issued by Bituminous Casualty Corporation existed, which policy provided coverage to The Dow Chemical Company for the claims alleged, whether as an insured, additional insured, or third party beneficiary, the Motion for Summary Judgment against The Dow Chemical Company should have been granted. Schafer v. Summers, 2012-0730 (La. App. 1st Cir. 2/15/13), 113 So.3d 219, 224, citing Tunstall v. Stierwald, 2001-1765 (La. 2/26/02), 809 So.2d 916, 921.
Accordingly, the Motion for Summary Judgment filed by Bituminous Casualty Corporation is granted, in part, and the claims of The Dow Chemical Company asserted against Bituminous Casualty Corporation are dismissed, with prejudice. In all other respects, the writ application is denied. This matter is remanded to the trial court for further proceedings consistent with this action.
JMM
WJC
Holdridge, J., concurs. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT