Opinion
No. 2002 CA 1979.
July 2, 2003.
APPEAL FROM THE 16TH JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF ST. MARY, STATE OF LOUISIANA TRIAL COURT NUMBER 106,786, THE HONORABLE CHARLES L. PORTER, JUDGE PRESIDING.
Aubrey E. Denton, Lafayette, Louisiana, Counsel for Plaintiffs/Appellants, Jeffrey Auguste Goulas, Donna Mire Goulas, Individually and on behalf of their minor child, Micah Thomas Goulas.
Matthew J. Hill, Jr., Lafayette, Louisiana, Counsel for Defendants/Appellees, Michael Sonnier and Betty Sonnier.
L. Albert Forrest, New Iberia, Louisiana, Counsel for Defendant/Appellee, State Farm Fire Casualty Co.
BEFORE: KUHN, DOWNING AND GAIDRY, JJ..
Jeffrey Auguste Goulas and Donna Mire Goulas, appeal a partial summary judgment in which the trial court dismissed State Farm Fire and Casualty Company (State Farm) as a party to the underlying lawsuit based on an exclusion contained in Michael and Betty Sonnier's homeowners' insurance policy. For the following reasons, we conclude that State Farm was not entitled to judgment as a matter of law. Accordingly, we reverse the judgment of the trial court and remand for further proceedings.
The Goulases are proceeding individually and on behalf of their minor child, Micah Thomas Goulas.
BACKGROUND
Jeffrey and Donna Goulas's three-year-old child, Micah, was bitten and scarred by Michael and Betty Sonnier's dog while Betty Sonnier took care of him. The Goulases frequently left their child with Ms. Sonnier during weekdays, and they paid Ms. Sonnier a small daily fee for keeping Micah.
After the bite, the Sonniers submitted a claim to State Farm for injuries to Micah. State Farm ultimately denied the Sonniers' claim. The Goulases then filed suit against the Sonniers and State Farm for damages suffered by Micah. State Farm later filed a motion for summary judgment based on a business exclusion and a child care services exclusion contained in the Sonniers' homeowners "insurance policy.
After the hearing on the summary judgment motion, the trial court found that Ms. Sonnier was engaged in a business pursuit on her property and concluded that the policy exclusion clearly excluded such activity. Accordingly, the trial court entered judgment dismissing State Farm as a party.
The Goulases now appeal raising four assignments of error: 1) the trial court erred in granting State Farm's motion for summary judgment in that it failed to conclude that the doctrine of estoppel precluded State Farm's denial of coverage; 2) the trial court erred in failing to find the existence of issues of material fact on the issue of the doctrine of estoppel; 3) the trial court erred in failing to find that the exception to the business pursuits exclusion applied to preclude State Farm's denial of coverage; 4) the trial court erred in failing to find the existence of material issues of fact regarding the application of the business pursuits exclusion, thus requiring the denial of State Farm's motion for summary judgment.
DISCUSSION
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Wicker v. Harmony Corp. , 00-0231, p. 3 (La.App. 1 Cir. 3/28/01), 784 So.2d 660, 663, writ denied , 01-1726 (La. 9/28/01), 798 So.2d 115. A motion for summary should be granted if the pleadings, depositions, and answers together with affidavits show that there exists no genuine issue as to any material fact and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966 (B). Wicker , 00-0231 at p. 4, 784 So.2d at 663.
La.C.C.P. art. 966 (B) states in pertinent part:
B. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
"Procedurally, the court's first task on a motion for summary judgment is determining whether the moving party's supporting documents-| pleadings, depositions, answers to interrogatories, admissions and affidavits| — are sufficient to resolve all material factual issues." Smith v. Our Lady of the Lake Hospital, Inc. , 93-2512, p. 28 (La. 7/5/94), 639 So.2d 730, 752. And in reviewing the record, we observe that State Farm has failed to introduce into evidence any pleadings, depositions, answers to interrogatories, admissions, or affidavits as required by La.C.C.P. art. 966 (B). Accordingly, State Farm has failed to show that no genuine issue as to any material fact exists or that it is entitled to judgment as a matter of law.
We observe that State Farm did file into the record a copy of the alleged insurance policy at issue and two transcribed investigatory statements made by Michael and Betty Sonnier before a court reporter. But the insurance policy was not made part of or attached to any affidavit or pleading, and the Sonniers' statements were specifically not depositions. And as such, these items are not admissible under La.C.C.P. art. 966 (B), which lists the evidence a trial court can consider in deciding a motion for summary judgment. La.C.C.P. art. 966 (B) gives a trial court, and this court, legal authority to consider only pleadings, depositions, answers to interrogatories, admissions and affidavits in determining a party's entitlement to summary judgment.
We are mindful that the summary judgment articles are to be construed to accomplish the just, speedy and inexpensive determination of actions. La.C.C.P. art. 966 (A)(2). And we acknowledge that the summary judgment rule "is designed to allow courts to decide whether enough evidence exists to go to trial, thus giving judges the opportunity to weed out meritless litigation." Scott v. McDaniel , 96-1509, p. 4 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, 1191. Even so, the legislature has prescribed that a determination of a claimant's right to summary judgment be based on pleadings, depositions, answers to interrogatories, admissions, and affidavits submitted in support of the motion. La.C.C.P. art. 966 (B). See Scott , 96-1509 at p. 5, 694 So.2d at 1192. And since State Farm has failed to submit any acceptable evidence in compliance with legislatively authorized procedure, we are constrained to conclude that it has failed to show the nonexistence of a genuine issue as to any material fact or that it is entitled to judgment as a matter of law.
DECREE
The judgment of the trial court granting summary judgment in favor of State Farm and against the Goulases is reversed. We remand for further proceedings. Costs are taxed to State Farm.
REVERSED AND REMANDED.
Although this appeal was resolved on grounds not requiring us to reach the coverage issue, it is important to note the following for future consideration by the trial court:
Ownership of a pet is a normal part of home ownership. Dogs are seldom considered a business and even more seldom considered as part of a childcare operation. It does not appear from the record that Sonniers involved their dog in any way in their childcare operation. The dog had nothing to do with any services rendered to the children; it was not used to guard or to amuse the children, but was merely a pet of the family and was kept completely isolated from the children.
A dog bite is normally covered under a homeowner's policy. The business exclusion and childcare exclusion do not void the homeowner's policy, but merely limit recovery if the event is related to the exclusion.