Opinion
2018 CA 1178
05-09-2019
Angela WHITEHEAD v. Michael CUROLE, Susan Curole, ASI Lloyds and Progressive Security Insurance Company
L. Richard Roy, III, Baton Rouge, Louisiana, Counsel for Defendants/Appellants, Michael and Susan Curole Charles V. Giordano, Michael E. Escudier, Jennifer S. Edwards, Jairo F. Sanchez, Dianna Duffy Willem, Metairie, Louisiana, Counsel for Defendant/Appellee, Progressive Security Insurance Company
L. Richard Roy, III, Baton Rouge, Louisiana, Counsel for Defendants/Appellants, Michael and Susan Curole
Charles V. Giordano, Michael E. Escudier, Jennifer S. Edwards, Jairo F. Sanchez, Dianna Duffy Willem, Metairie, Louisiana, Counsel for Defendant/Appellee, Progressive Security Insurance Company
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
MCCLENDON, J.
This appeal arises from the trial court's judgment granting a motion for summary judgment in favor of an insurer. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On June 19, 2017, Angela Whitehead filed a Petition for Damages against Michael Curole, Susan Curole, ASI Lloyds, as the homeowners' insurer of the Curoles, and Progressive Security Insurance Company (Progressive), as the personal umbrella insurer of the Curoles. Therein, Ms. Whitehead alleged that on April 5, 2017, the Curoles' dog bit her causing her to suffer injuries and damages due to the negligence of the Curoles. Thereafter, ASI Lloyds and Progressive each filed an answer, and the Curoles filed an answer and cross-claim against Progressive. ASI Lloyds and Progressive then filed a motion for summary judgment asserting animal liability exclusions in their respective insurance policies. The motion was heard on March 1, 2018. At the beginning of the hearing, Ms. Whitehead and ASI Lloyds stipulated that they had reached an agreement and that they would enter into a consent judgment, granting ASI Lloyd's motion for summary judgment and dismissing Ms. Whitehead's claims against ASI Lloyds. Progressive's motion for summary judgment was then argued and taken under advisement. Later that same day, the trial court issued a minute entry, stating that it was "firmly of the opinion that there is no genuine issue of material fact," and granted Progressive's motion for summary judgment, dismissing all claims against Progressive. On March 20, 2018, the trial court signed a final judgment, and the Curoles have appealed.
Ms. Whitehead asserted that she was visiting the Curoles at their home. Shortly after leaving, Ms. Whitehead realized that she left her cell phone and returned to the Curoles' home. She further stated that after knocking on the front door, the front door opened and the dog jumped on her and bit her.
DISCUSSION
Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court's determination of whether summary judgment is appropriate. Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So.3d 1002, 1005-06. After 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. The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. LSA-C.C.P. art. 966A(3) and (4). The court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of material fact. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam); Penn v. CarePoint Partners of Louisiana, L.L.C., 14-1621 (La.App. 1 Cir. 7/30/15), 181 So.3d 26, 30. A genuine issue is one as to which reasonable persons could disagree. Moreover, all doubts should be resolved in the non-moving party's favor. Hines, 876 So.2d at 765-66.
The burden of proof rests with the mover. LSA-C.C.P. art. 966D(1). Nevertheless, if the moving party will not bear the burden of proof at trial on the issue before the court on the motion, the moving party's burden is satisfied by pointing out an 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. 966D(1). The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. LSA-C.C.P. art. 966D(2). Thereafter, the adverse party may not rest on the mere allegations or denials of his pleadings but must produce factual support sufficient to establish there is a genuine issue for trial. If the adverse party fails to meet this burden, then summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967B.
Interpretation of an insurance policy is usually a legal question that can be properly resolved by means of a motion for summary judgment. Miller v. Superior Shipyard and Fabrication, Inc., 01-2683 (La.App. 1 Cir. 11/8/02), 836 So.2d 200, 203. An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. The judicial responsibility in interpreting insurance contracts is to determine the parties' common intent. The parties' intent as reflected by the words in the policy determines the extent of coverage. Samuels v. State Farm Mutual Automobile Insurance Company, 06-0034 (La. 10/17/06), 939 So.2d 1235, 1240. If the wording of the policy clearly and unambiguously expresses the parties' intent, the insurance contract must be enforced as written. Edwards v. Daugherty, 03-2103 (La. 10/1/04), 883 So.2d 932, 941. Furthermore, to recover on an insurance policy, an insured must prove that its loss is covered by the policy. If the insured meets this burden, the insurer then has the burden of proving the applicability of policy exclusions. Maldonado v. Kiewit Louisiana Company, 13-0756 (La.App. 1 Cir. 3/24/14), 146 So.3d 210, 218.
In their appeal, the Curoles initially assert that the evidence Progressive submitted in support of its motion for summary judgment failed to meet the mandatory requirements of LSA-C.C.P. art. 967. In their first two assignments of error, the Curoles contend that the affidavit of Brian Dedrick, Progressive's analyst and representative, was inadmissible because all papers attached thereto were not sworn or certified copies. Particularly, the Curoles maintain that Progressive's underwriting file was provided by Amanda Horton in an unsigned and unsworn letter. Therefore, according to the Curoles, Mr. Dedrick's affidavit and the underwriting file were inadmissible.
Alternatively, the Curoles assert in their third assignment of error that Progressive failed to prove actual delivery of the insurance policy and its endorsements and exclusions. In support of this argument, Mr. Curole submitted his own affidavit, in which he attested that he did not receive a copy of the umbrella policy until after the April 2017 dog-bite incident. The Curoles aver that, although Mr. Dedrick stated in his affidavit that Progressive "followed its standard procedures of mailing the policy, declaration page, and endorsements to the insured, Michael Curole," Progressive "failed to provide any specific factual proof of its ordinary course of business practices."
Conversely, Progressive states that the evidence it submitted is all admissible evidence for summary judgment. In support of its motion, Progressive offered the affidavit of Mr. Dedrick and attached thereto a certified copy of the insurance policy; a certified copy of the underwriting file, certified by a letter dated December 13, 2017, and electronically signed by Ms. Horton; the Curoles' application for the insurance policy; and a copy of the letter dated May 18, 2016, from Progressive to Mr. Curole indicating that it enclosed the declarations page and the policy.
Initially, we find that the Curoles incorrectly assert that the electronically signed certificate of records by Ms. Horton is excluded under the Louisiana Uniform Electronic Transmission Act (UETA), LSA-R.S. 9:2601, et seq. Except as otherwise provided, the UETA "applies to electronic records and electronic signatures relating to a transaction." LSA-R.S. 9:2603A; In re Tillman, 15-1114 (La. 3/15/16), 187 So.3d 445, 452. The Curoles have cited an earlier version of the UETA. Although a previous version of LSA-R.S. 9:2603B(4)(b) excluded "[c]ourt orders or notices, or official court documents, including briefs, pleadings, and other writings, required to be executed in connection with court proceedings, except as otherwise provided by law," the statute was amended and that particular provision was deleted by La. Acts 2014, No. 606, § 2. Thus, Ms. Horton's electronically signed letter is admissible under the current version of LSA-R.S. 9:2603 to certify the underwriting file. Therefore, the Curoles' argument that Mr. Dedrick's affidavit is inadmissible because Ms. Horton's letter certifying the underwriting file is inadmissible also fails. The documents supporting Mr. Dedrick's affidavit are certified and admissible summary judgment evidence. See LSA-C.C.P. art. 967A.
The Curoles also make their alternative argument that Progressive failed to meet its burden of proof that it delivered the insurance policy as required by LSA-R.S. 22:873A. They contend that the failure of Progressive in proving the required delivery of the policy prevents it from enforcing any exclusion in the policy. The Curoles state that the record only contains an unsigned form letter forwarding the declarations page and policy that failed to even contain the name of a Progressive representative mailing same. The Curoles argue that Mr. Dedrick's affidavit specifically recognized that Progressive "does not prepare mailing logs for mailing insurance policies to the insureds, but relies upon the records maintained in the ordinary course of business in the underwriting file as evidence of the transactions, correspondence and communications regarding the insurance policies issued to the insureds." Therefore, they contend that Progressive failed to provide any factual proof of delivery.
Louisiana Revised Statutes 22:873A provides:
Subject to the insurer's requirements as to payment of premium, every policy shall be delivered to the insured or to the person entitled thereto within a reasonable period of time after its issuance. Delivery may be by the United States Postal Service, personal delivery, private courier, or by electronic transaction in accordance with the Louisiana Uniform Electronic Transactions Act, R.S. 9:2601 et seq.
It is legally presumed that, upon mailing of the policy by the insurance company to the insured, the insured did, in fact, receive the documents. Halmekangas v. ANPAC Louisiana Ins. Co., 11-1293 (La.App. 4 Cir. 6/8/12), 95 So.3d 1192, 1197, writ denied, 12-1542 (La. 10/12/12), 98 So.3d 873. Our review of the record establishes that Mr. Dedrick attested that Progressive "followed its standard procedures of mailing the policy, declaration page, and endorsements to the insured, Michael Curole." The unsigned letter was part of the underwriting file certified by Mr. Dedrick and enclosed the umbrella policy coverage summary, or declarations page, and the policy.
In Rapp v. GEICO Indemnity Co., 05-0368 (La.App. 4 Cir. 2/8/06), 925 So.2d 626, writ denied. 06-0594 (La. 5/5/06), 927 So.2d 326, the plaintiff presented an affidavit that he did not receive the policy, and the insurer presented internal underwriting documents and an affidavit from an underwriter stating that the policy had been mailed. The trial court found that the insurer presented sufficient evidence to prove that the policy was mailed as required by statute and granted the insurer's motion for partial summary judgment on the issue of coverage. The fourth circuit agreed and affirmed. Rapp, 925 So.2d at 629.
Similarly, in this matter, although Mr. Curole attested in his affidavit that he did not receive a copy of the policy until after the dog-bite incident, Progressive established delivery through Mr. Dedrick's affidavit that the policy was mailed, relying on documents kept in the ordinary course of business, including the complete underwriting file. Moreover, the file contained the letter showing that the declaration page and the policy were mailed. We find that Progressive provided sufficient evidence to show that the insurance policy was mailed as required by statute, overcoming Mr. Curole's affidavit to the contrary.
The Curoles next argue that the animal liability exclusion in Progressive's insurance policy is ambiguous and therefore unenforceable. The Curoles refer to the definition of "insured" in the policy, which includes any person "having custody of pets that you or a relative own, provided that person does not have custody as part of a business." They also point to the animal liability exclusion, which provides that coverage under the policy will not apply to an insured person for injury or damage "arising out of, or in any way related to, an animal." The Curoles reason that because the insurance policy does not define the terms "pet" or "animal," the definition of "insured" is ambiguous.
The determination of whether a contract is clear or ambiguous is a question of law. An insurance policy, including its exclusions, should not be interpreted in an unreasonable or strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. McQuirter v. Rotolo, 11-0188 (La.App. 1 Cir. 9/14/11), 77 So.3d 76, 81. The rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties' intent. Cadwallader v. Allstate Ins. Co., 02-1637 (La. 6/27/03), 848 So.2d 577, 580. Moreover, although liability insurance policies should be interpreted to effect, rather than to deny coverage, it is well-settled that unless a statute or public policy dictates otherwise, the insurers may limit liability and impose such reasonable conditions or limitations upon their insureds. Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La. 5/22/07), 958 So.2d 634, 638-39.
In the case sub judice, we find the exclusion clear and unambiguous. Taken in its plain and ordinary meaning, the exclusion is easily understood to mean that no coverage exists for injury or damage "arising out of, or in any way related to, an animal." Moreover, we find no conflict between the exclusion and the definition of insured. The Curoles' dog is clearly and undisputedly their pet, and is also an animal. See also Reid v. Sweetwater Campground, Ranch & Stables, L.L.C., 10-0502 (La.App. 1 Cir. 10/29/10), 56 So.3d 463 (unpublished) ( 2010 WL 4273092 ) (wherein we found than an insurance policy was clear and unambiguous and excluded coverage for injuries caused by the insured stable's horse. The policy did not provide coverage for "[b]odily injury, property damage or medical payments to others, caused by any animal, whether owned or not owned by any insured.") When we find the contract of insurance clear and unambiguous, we must enforce the policy as written. Liability relating to an animal is excluded in the policy before us, and coverage and recovery by the Curoles against Progressive is precluded. There being no genuine issues of material fact, Progressive was entitled to summary judgment as a matter of law.
It is undisputed that Progressive's personal umbrella policy was in full force and effect on the date of the incident herein.
Finding that the exclusion applies, we need not address the Curoles' argument that Progressive's personal umbrella policy is not subject to a $ 300,000.00 self-insured retention, but rather subject to only a $ 250.00 deductible.
CONCLUSION
The March 20, 2018 judgment of the trial court, granting summary judgment in favor of Progressive Security Insurance Company, is affirmed. Costs of this appeal are assessed to Michael Curole and Susan Curole.