Preview:

ENCOMPASS INSURANCE COMPANY, AS SUBROGEE OF MORRIS KEIL MOSS VERSUS GAMMON ROOFING, L.L.C., PREVIOUSLY KNOWN AS GAMMON ENTERPRISES, L.L.C., STEPHEN D. GAMMON AND ESSEX INSURANCE COMPANY

* * * * *******

NO. 2007-CA-1554 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2005-9883, DIVISION "F-10" HONORABLE YADA MAGEE, JUDGE ****** JUDGE PRO TEMPORE MOON LANDRIEU ****** (COURT COMPOSED OF JUDGE MAX N. TOBIAS, JR., JUDGE EDWIN A. LOMBARD, JUDGE PRO TEMPORE MOON LANDRIEU)

WILLIAM M. BLACKSTON CHARLES E. RILEY, IV SIMON PERAGINE SMITH & REDFEARN, L.L.P. 1100 POYDRAS STREET SUITE 3000 NEW ORLEANS, LA 70163 AND BRAD M. GORDON GROTEFELD & HOFFMANN, LLP 180 NORTH LASALLE SUITE 1810 CHICAGO, IL 60601 COUNSEL FOR PLAINTIFF/APPELLANT, ENCOMPASS INSURANCE COMPANY

GERALD A. MELCHIODE JULIE EUSTIS VAICIUS GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH 701 POYDRAS STREET 4040 ONE SHELL SQUARE NEW ORLEANS, LA 70139 COUNSEL FOR DEFENDANT/APPELLEE, ESSEX INSURANCE COMPANY

SEPTEMBER 24, 2008

AFFIRMED

This is an insurance coverage dispute. The trial court granted the motion for summary judgment filed by the defendant, Essex Insurance Company ("Essex"). From that judgment, the plaintiff, Encompass Insurance Company ("Encompass"), appeals. For the reasons that follow, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On July 19, 2004, Morris Keil Moss entered into a contract with Gammon Roofing, L.L.C. (previously known as Gammon Enterprises, L.L.C.)("Gammon Roofing"), through its president Stephen D. Gammon. The contract was to remove the existing flat roof on Mr. Moss's home located at 122 Fairway Drive in New Orleans and to install a new roofing system on the home. As part of the contract, Gammon Roofing agreed to remove and to install the roofing in a workmanlike manner, and it represented that it was "fully insured." On July 28, 2004, Gammon Roofing began work removing the original roof from Mr. Moss's home using propane torches. On that same day, Mr. Moss's residence was damaged by a fire. An investigation revealed that the fire was caused when the propane torch ignited the roof area, flashing, or both, causing a

1

smoldering fire subsequently to erupt and fully engulf the home.1 Seeking indemnification and reimbursement for damages to his home resulting from the fire, Mr. Moss filed a claim with his homeowners' insurer, Encompass. Pursuant to the homeowners' policy, Encompass paid Mr. Moss $502,860.05. On July 22, 2005, Encompass, as Mr. Moss's subrogee, commenced this suit seeking to recover the monies it paid to its insured, Mr. Moss. Named as defendants were Gammon Roofing, Mr. Gammon, and Essex. In its petition, Encompass averred that Gammon Roofing was negligent in its use of propane torches to remove the old roof and that it breached the contract when it failed to remove, install, repair, and otherwise complete the work in a workmanlike manner according to standard practices, and when it failed to obtain full insurance for work completed at the home. Essex answered the suit asserting various policy exclusions precluded coverage. In particular, Essex cited the Roofing Exclusion, which, in pertinent part, provides: The coverage under this policy does not apply to "bodily injury," "property damage," "personal injury," "advertising injury," or any injury, loss, or damage arising out of: ****** 3. Any operations involving any hot tar, wand, open flame, torch or heat applications, or membrane roofing;2

1

The only statement of the facts concerning the fire that was before the trial court on the motion for summary judgment is contained in Encompass's petition. 2 Essex further relied upon a Breach of Contract Exclusion, which provides: This insurance does not apply to claims for breach of contract, whether express or oral, nor claims for breach of an implied in law or implied in fact contract, whether "bodily injury," "property damage," "advertising injury," "personal injury" or an "occurrence" or damages of any type is alleged; Essex still further relied upon a Work Product Exclusion. The trial court, however, based its decision solely on the Roofing Exclusion.

2

Essex also filed a motion for summary judgment asserting the same policy exclusions precluded coverage. In support of its motion for summary judgment Essex submitted an affidavit of one of its claims examiners, who attested that the copy of the policy attached to her affidavit was a correct and complete copy of the commercial general liability policy issued to Gammon Roofing for the period March 14, 2004 to March 14, 2005. Essex argued that the unambiguous language of the Roofing Exclusion, which precludes coverage of "any operations involving . . . torch or heat applications," coupled with the allegations of the petition, which alleges that the fire occurred as a result of the Gammon Roofing's employee's use of a propane torch, precluded coverage as a matter of law. Agreeing with Essex, the trial court found that "the exclusion is not ambiguous and as such, serves to bar recovery under the policy." The trial court thus granted Essex's motion for summary judgment.3 This appeal by Encompass followed. 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: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. King v. Parish Nat'l Bank, 040337, p. 7 (La. 10/19/04), 885 So.2d 540, 545. A motion for summary judgment will be granted "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." La. C.C.P. art. 966(B). Favored in Louisiana, the summary judgment

Although the trial court in its judgment stated that the judgment was final for purposes of appeal, a judgment dismissing a party is a final judgment as a matter of law under La. C.C.P. art. 1915 A(1).

3

3

procedure is designed to secure the just, speedy, and inexpensive determination of every action, and should be construed to accomplish those ends. La. C.C.P. art. 966(A)(2). "When . . . a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law and summary judgment is appropriate." Brown v. Drillers, Inc., 93-1019 (La. 1/14/94), 630 So.2d 741, 749750 (citations omitted). However, a summary judgment declaring no coverage under an insurance policy may not be rendered unless "there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded." Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183 (citations omitted). In Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co., 93-0911 (La. 1/14/94), 630 So.2d 759, the Louisiana Supreme Court outlined the following elementary principles for interpreting insurance policies:

Download 216709.pdf

Louisiana Law