Opinion
NO. 2016 CW 0987
08-01-2016
DAVID DAVIDSON AND DEBRA DAVIDSON v. RUSTON PROPERTIES, LLC, RUSTON & BAUER, LLC, BAUER CONSTRUCTION, LLC AND PREFERRED CONTRACTORS INSURANCE
In Re: Preferred Contractors Insurance Company Risk Retention Group, LLC, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 612283. BEFORE: McDONALD, HIGGINBOTHAM, CRAIN, THERIOT AND CHUTZ, JJ.
WRIT GRANTED IN PART AND DENIED IN PART. The burden of proof on a motion for summary judgment is on the movant. LSA-C.C.P. art. 966(D)(1). The insurer bears the burden of proving that a loss falls within a policy exclusion. Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 2006-1827 (La. 5/22/07), 958 So.2d 634, 638-639. In this matter, Preferred Contractors Insurance Company Risk Retention Group, LLC ("PCIC") established that its policy number PC80712, issued to Ruston Properties for the period of September 16, 2011 to September 12, 2012, excluded coverage for claims made for a "Covered Loss" pursuant to "Endorsement to Policy No. 51," which provides that the insurance policy does not apply to "'bodily injury' or 'property damage' ... in any way related to any act or omission of any ... contractor ... who is required to be licensed by any ... state ... licensing authority but is not in compliance with any such licensing requirement ...." PCIC further established that Ruston Properties, by its action of undertak[ing] or offer[ing] to undertake the construction or superintending of the construction of [plaintiffs' residence], where the cost of the undertaking exceeded seventy-five thousand dollars," was required to hold an active license under the classification of residential construction. La. R.S. 37:2150.1(11), La. R.S. 37:2156.1(A)(10), and La. R.S. 37:2167. PCIC further submitted evidence establishing that Ruston Properties did not hold such a license when it contracted to construct plaintiffs' residence or during the period of time that it was being constructed. Plaintiffs failed to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover was not entitled to judgment as a matter of law with respect to this particular policy period. LSA-C.C.P. art. 966(D)(1). Thus, the exclusionary language of policy number PC80712 precludes coverage for the claims asserted by plaintiffs against Ruston Properties for the period of September 16, 2011 to September 12, 2012, and the district court erred in finding otherwise. Thus, we grant the writ application insofar as the district court denied PCIC's motion for summary judgment in this respect, and we render summary judgment in its favor dismissing plaintiffs' claims for any covered losses for the period of September 16, 2011 to September 12, 2012.
With respect to policy number PC75875, issued to Ruston Properties for the period of June 28, 2010 to June 28, 2011, we find PCIC did not meet its burden of proving that plaintiffs' claims are clearly excluded by the terms of the unlicensed contractors endorsement. In proving that Ruston Properties did not hold an active license under the classification of residential construction, PCIC did not demonstrate that the "project" at issue, i.e., the construction of plaintiffs' residence, did not meet "state specified regulations" as required by the terms of its endorsement. Thus, PCIC's writ application is denied insofar as it seeks to reverse that portion of the district court's ruling that denied the motion for summary judgment, seeking the dismissal of plaintiffs' claims for any covered losses for the period of June 28, 2010 to June 28, 2011.
MRT
WRC
JMM
Higginbotham, J., concurs in part and dissents in part and would deny the writ. Crain, J., concurs in part and dissents in part and would deny the writ in its entirety, allowing review of the insurance coverage issues on appeal. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT