Gibbs Construction, L.L.C. v. National Rice Mill, L.L.C.

GIBBS CONSTRUCTION, * NO. 2019-CA-0665
L.L.C.
*
VERSUS COURT OF APPEAL
*
NATIONAL RICE MILL, L.L.C. FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2012-12018, DIVISION “M”

Honorable Paulette R. Irons, Judge
******
Judge Paula A. Brown
******
(Court composed of Chief Judge James F. McKay, III, Judge Paula A. Brown,
Judge Dale N. Atkins)

C. Michael Pfister, Jr.
Linda A. Hewlett
DUPLASS ZWAIN BOURGEOIS PFISTER & WEINSTOCK
3838 North Causeway Boulevard
2900 Three Lakeway Center
Metairie, LA 70002

COUNSEL FOR THIRD-PARTY DEFENDANT/APPELLEE

Stephen Michael Gele’
Randall Alan Smith
Darrinisha Gray
SMITH & FAWER, L.L.C.
201 St. Charles Avenue
Suite 3702
New Orleans, LA 70170

Emile Anthony Bagneris, III
THE BAGNERIS FIRM, LLC
6305 Elysian Fields Ave, Ste. 207
New Orleans, LA 70112

COUNSEL FOR DEFENDANTS/APPELLANT

REVERSED; REMANDED
March 18, 2020

2

PAB

JFM

DNA

This appeal arises from an insurance coverage dispute between

Appellant/Defendant/Third-party Plaintiff, National Rice Mill, L.L.C. and

Appellee/Third-party Defendant, Fireman’s Fund Insurance Company. Rice Mill

seeks review of the district court’s March 12, 2019 judgment granting Fireman’s

Fund’s motion for partial summary judgment. For the reasons that follow, we

reverse the judgment of the district court and remand for further proceedings

consistent with this opinion.

PROCEDURAL HISTORY/FACTUAL BACKGROUND

The pertinent parties involved in this litigation were succinctly set forth in

Gibbs Constr., L.L.C. v. Nat’l Rice Mill, L.L.C., 17-0113, pp. 1-2 (La. App. 4 Cir.

2/21/18), 238 So.3d 1033, 1036, writ denied, 18-0464 (La. 5/11/18), 241 So.3d

1012:

1

Rush began the masonry restoration work in March of 2010. In July of

2011, a severe storm occurred that caused water intrusion into the apartment

complex. In September of 2011, Tropical Storm Lee struck New Orleans, resulting

in a major water intrusion into the apartment complex. Rice Mill claimed it

continued to experience water intrusions. Rice Mill received and documented

complaints from tenants of water intrusion into their apartments from April of

2012 through August of 2012. In August of 2012, Hurricane Isaac struck, and the

apartment complex suffered another major water intrusion.

In December of 2012, Gibbs filed a petition alleging Rice Mills was in

breach of contract for failure to make payments due under the contract. Rice Mill

filed an answer, reconventional demand, and third-party demand, a supplemental

and amended reconventional demand and third-party demand, and a third amended

third-party demand. In these pleadings, Rice Mill alleged that Gibbs was in breach

of contract and negligent:

10.
As part of the Contract, Gibbs was to waterproof the building,
including masonry replacement and repair, to certain specifications.
11.
The waterproofing, including the masonry work, was performed
below standards, not in accordance with the plans and specifications,
and did not provide adequate waterproofing for the building envelope.
12.
Gibbs had, and has, a continuing obligation to complete the
following work, and/or make the following restorations and repairs
which they have not accomplished:

2

A. waterproofing the building, including the windows; and

B. repaying and/or replacing any and all other defects in design,
manufacture, construction, workmanship and/or installation be
shown at the trial of this matter.

***
16.
Gibbs was negligent and caused National Rice Mill to suffer
damages by failing to properly manage and supervise its
subcontractors, as well as inspect the work performed during the
construction of the project.
17.
National Rice Mill has repeatedly called upon Gibbs to
complete the work to meet the plans and specifications to no avail.
18.
The incomplete and defective work of Gibbs has contributed in
whole or in part to severe water intrusion into the building.

Rice Mill included as third-party defendants, Rush, Westchester, and Fireman’s

Fund.1 Rice Mill asserted the defendants were liable in solido for damages.2 Rice

Mill settled with all of the parties except for Fireman’s Fund.

In February of 2016, Fireman’s Fund filed a motion for partial summary

judgment arguing that two separate weather events, one on September 4, 2011,

Tropical Storm Lee, and one on August 28, 2012, Hurricane Isaac, resulted in two

occurrences of property damage that triggered both of Westchester’s policies.3

1
Other third-party defendants were named which are not relevant to the case sub judice.
2
Rice Mill alleged the following damages:

. . . resulting from their breaches of contract, breaches of warranty, and
negligence, which consist of water intrusion damage, mold and mildew damages,
termite damage, property damage, cleanup and remediation costs, cost of repair
and renovation of the masonry, cost of waterproofing the building, diminution of
value to the building, delay damages, costs and expenses of relocating tenants,
lost rents, loss of business reputation, loss of profits and loss of business
opportunity, legal interest from the date of default, reasonable attorney fees, and
the costs of these proceedings.
3
Westchester filed a motion for partial summary judgment asserting there was one occurrence—
the construction defect in the masonry—that allowed the water damage to occur, triggering only
one of its policies—the policy for the period of February 1, 2011 to February 1, 2012. Before

3

Fireman’s Fund’s motion for partial summary judgment was granted and

designated as final by the district court. Rice Mill appealed, and this Court held

that Fireman’s Fund, in light of its failure to properly submit exhibits in support of

its motion, “failed to meet its burden of proving two occurrences and was not

entitled to judgment as a matter of law.” Gibbs Constr., L.L.C., 17-0113, p. 9, 238

So.3d at 1040.4 As a result, the district court’s ruling was reversed and the matter

remanded “for proceedings consistent” with the opinion. Id., 17-0113, pp. 9-10,

238 So.3d at 1040.

In February of 2018, Fireman’s Fund renewed its motion for partial

summary judgment and properly attached exhibits in support of its motion. In its

renewed motion, Fireman’s Fund requested “a ruling from [the district court] that

the 2011 Westchester insurance policy was triggered and the 2012 Westchester

insurance policy was triggered as a result of at least two separate instances

[occurrences] of property damage to Third-Party Plaintiff, National Rice Mill’s

building.”

Rice Mill opposed the motion and properly attached exhibits in support of its

opposition. Rice Mill argued there was a single occurrence—the continuous or

repeated exposure to the defective masonry restoration which resulted in water

intrusions into the apartment complex causing property damage.

the district court could rule on the motion, Westchester entered into a settlement agreement with
Rice Mill.
4
This Court wrote that “[b]ased on our de novo review of the motion for summary judgment,
opposition, and the exhibits attached to and properly admitted with the motion and opposition,
there is not sufficient evidence before this Court ‘to show that the other party lacks factual
support for their position.’” Gibbs Constr., L.L.C. v. Nat’l Rice Mill, L.L.C., 17-0113, p. 9, 238
So.3d at 1040.

4

After a hearing was held in October of 2018, the district court granted

Fireman’s Fund’s motion.5 The judgment was signed on March 12, 2019, and the

district court designated the judgment as a final judgment pursuant to La. C.C.P.

art. 1915(B). This appeal follows.

DISCUSSION

Rice Mill asserts that the district court erred in granting Fireman’s Fund

motion for partial summary judgment.

An appellate court’s standard of review for a grant of a summary judgment

is de novo, and it employs the same criteria that district courts consider when

determining if a summary judgment is proper. Perniciaro v. McInnis, 18-0113, pp.

8-9 (La. App. 4 Cir. 9/7/18), 255 So.3d 1223, 1230 (citations omitted). “To affirm

a summary judgment, we must find reasonable minds would inevitably conclude

that the mover is entitled to judgment as a matter of the applicable law on the facts

before the court.” Johnson v. Loyola Univ. of New Orleans, 11-1785, p. 7 (La.

App. 4 Cir. 8/8/12), 98 So.3d 918, 923.

Fireman’s Fund’s renewed motion for partial summary judgment was filed

in 2018. The applicable version of La. C.C.P. art. 966 provided that “[a]fter 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.” La. C.C.P. art. 966(A)(3). The burden of proof was on the mover,

5
At the hearing, the following pertinent exchange occurred:
[COUNSEL FOR FIREMAN’S FUND]:
Judge, whether it’s one occurrence, two occurrences or ten occurrences
that span two policies, you’ve got property damage that occurs during those
policy periods and so, therefore, coverage under that policy is triggered.

THE COURT;
I agree with him. This is two occurrences.

5

Fireman’s Fund; whereas the adverse party, Rice Mill, had the burden 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. La. C.C.P. art.

966(D)(1).6

Rice Mill argues the district court erred in concluding that there were two

separate occurrences under the Westchester CGL policies. Rice Mill asserts there

was a single occurrence—the “continuous and repeated water intrusions from the

same harmful conditions in the masonry.” In support, Rice Mill references the

exhibits attached to its opposition memorandum to Fireman’s Fund’s motion for

partial summary judgment. Rice Mill cites to a July 14, 2011 email between

Wayne Troyer, the architect Rice Mill hired for the extensive renovation of the

apartment complex whose specifications included the work to be performed on the

masonry, and the superintendent for Gibbs; this email discussed a water intrusion

through the exterior brick of the apartment complex which occurred during a rain

storm on July 11, 2011. Rice Mill references excerpts of Mr. Troyer’s deposition

taken on September 30, 2014, and October 1, 2014, respectively, wherein Mr.

Troyer was of the opinion that the water intrusions were a result of the defective

masonry restoration.7 In addition, Rice Mill points out an excerpt of the deposition

6
La. C.C.P. art. 966 (D)(1) provides that “[i]f the mover will not bear the burden of proof at trial
on the issue that is before the court on the motion for summary judgment, the mover’s burden on
the motion does not require him to negate all essential elements of the adverse party’s claim,
action, or defense, but rather to point out to the court the absence of factual support for one or
more elements essential to the adverse party’s claim, action, or defense.”
7
In the October 1, 2014 deposition, Mr. Troyer opined:

Q Okay. And I just had a question in regard to -- you were asked about the source
of water intrusion this morning with regard to the Tropical Storm Lee.
A Uh-huh.
Q And I have that you responded that your opinion was the source of the water
coming in was the lack of the tuckpointing and through cracks and voids in the
brick. Would those sources also be the same for Isaac?

6

of Sean Cummings, owner of Rice Mill, wherein Mr. Cummings stated that there

were water intrusions in addition to those that occurred during Tropical Storm Lee

and Hurricane Isaac. Notwithstanding, Mr. Cummings acknowledged that the

invoices, provided in discovery as proof of damages suffered, were designated

under the two major storms. Also, Rice Mill iterates that it received tenants’

emails from February, April, May, June, July, and August of 2012 notifying Rice

Mill’s management of water intrusions in their apartments.8 Furthermore, Rice

Mill contends the property damage that occurred under the Westchester 2011-2012

CGL policy was continuous and repeated exposure; thus, all the proven property

damages in which Rush would be liable are covered under the 2011-2012 policy.

In the alternative, Rice Mill contends there is a genuine issue of material fact as to

the occurrences.

In contrast, Fireman’s Fund asserts the district court was correct in finding

there were two occurrences, one under each of Westchester’s policies. In support,

Fireman’s Fund argues four grounds and references the following exhibits attached

to its renewed motion:

A Yes.
Q And those sources of water intrusion pre-existed Tropical Storm Lee; is that
correct?
A Yes.
Q And those same sources, the tuckpointing cracks, voids, pre-existed Hurricane
Isaac also, correct?

***

A Correct.
8
The affidavit of Anthony J. Larocci, a managing member of Rice Mill, was also attached to
Rice Mill’s opposition memorandum. In the affidavit, Mr. Larocci attested that the tenant’s
emails were “records made and kept in the course of a regularly conducted business activity of
National Rice Mill, L.L.C.,” and “[i]t was the regular practice of National Rice Mill, L.L.C. for
an employee or representative to make or keep a record of emails sent by tenants.”

7

A. Certified copy of the policy of Westchester, insuring Rush
Masonry, effective 2/1/11- 2/1/12.

B. Certified copy of the policy of Westchester, insuring Rush
Masonry, effective 2/1/12- 2/1/13.

C. National Rice Mill’s Initial Disclosures, authenticated by Sean
Cummings in his 3/27/15 deposition on p. 45 as Exhibit 158, attached
in globo;

D. National Rice Mill’s Memorandum in Opposition to Gibbs
Construction’s Motion for Summary Judgment on Consequential
Damages and Delay Damages.

E. National Rice Mill’s Responses to R.K. Holmes’ Third Set of
Interrogatories, authenticated by Sean Cummings in his deposition
3/27/15 on p. 68-72, attached in globo.

First, Fireman’s Fund points out that Rice Mill produced invoices of the costs

incurred due to the property damage, and the invoices were labeled by each storm.

The Tropical Storm Lee invoice totaled $111,937.29, and the Hurricane Isaac

invoice totaled $597,078.07. Second, Fireman’s Fund emphasizes Rice Mill’s

allegation “that the damage to the National Rice Mill Lofts was caused by water

infiltrating (primarily during Tropical Storm Lee and [Hurricane] Isaac) the

building through the masonry.”9 Third, Fireman’s Fund asserts that Rice Mill

experienced property damage in 2011 and then again in 2012, and Rice Mill

remediated its building twice after each weather event;10 thus, these two events

triggered Westchester’s 2011-2012 and 2012-2013 CGL policies. Fourth,

Fireman’s Fund contends that both Westchester policies specify that “‘[w]e will

pay those sums that the insured becomes legally obligated to pay as damages

9
As set forth supra, at the hearing on the motion for partial summary judgment, counsel for
Fireman’s Fund argued whether it was one occurrence or ten occurrences, the occurrences
spanned the two policies, thus, coverage under both polices was triggered.
10
Southeast Waterproofing, Inc., was hired by Rice Mill, in May of 2012, to apply a water
repellant to the masonry; it began the masonry work in June of 2012, which was completed in
July of 2012. In May of 2013, Rice Mill hired Frontier to waterproof the masonry and Frontier
completed its work in October of 2013.

8

because of . . . ‘property damage’ to which this insurance applies,’” and this

coverage applies to “‘property damage’” that occurs during the policy period. In

the alternative, Fireman’s Fund contends, if only the Westchester 2011-2012 CGL

policy is triggered, only those proven property damages sustained during the policy

period are covered.

Our review of the evidence admitted for purposes of the motion for partial

summary judgment shows that there is no genuine issue as to material fact; thus,

the question is whether Fireman’s Fund proved it was entitled to partial summary

judgment as a matter of law. As a result, this case necessitates the interpretation of

an insurance policy.

APPLICABLE LAW

In Perniciaro, 18-0113, p. 9, 255 So.3d 1223, 1231, writ denied, 18-1659

(La. 12/17/18), 259 So.3d 342 (quoting Thebault v. Am. Home Assur. Co., 15-

0800, p. 5 (La. App. 4 Cir. 4/20/16), 195 So.3d 113, 116), this Court explained that

“‘[i]nterpretation of an insurance policy usually involves a legal question that can

be resolved properly within the framework of a motion for summary judgment.’”

When called on to interpret an insurance policy, t

9

INTERPRETATION OF THE INSURANCE POLICY

Fireman’s Fund is the excess carrier of Westchester, and Westchester

provided a CGL policy for Rush. CGL insurance protects the insured against

liability for damages the insured’s operations cause to property other than the

insureds’ work product.11 In the case sub judice, Westchester issued to Rush two

CGL policies that were occurrence policies for the period of February 1, 2011 to

February 1, 2012, and February 1, 2012 to February 1, 2013. The policies

contained similar language. Both policies provided that “[Westchester] will pay

those sums that the insured becomes legally obligated to pay as damages because

of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” The

policy pertinently provided:

11
Louisiana Practice Series, § 6:2.Comprehensive [now referred to as “Commercial”] General
Liability (CGL) policy.

10

COVERAGE A BODILY INJURY AND PROPERTY DAMAGE
LIABILITY

1. Insuring Agreement

a. We will pay those sums that the insured becomes legally
obligated to pay as damages because of . . . “property
damage” to which this insurance applies. . . .

***

b. This insurance applies to . . . “property damage” only if:
(1) The . . . “property damage” is caused by an
“occurrence” that takes place in the “coverage territory”;
(2) The . . . “property damage” occurs during the policy
period.
***

c. “[P]roperty damage” which occurs during the policy period
and was not, prior to the policy period, known to have occurred
by any insured listed under Paragraph 1. of Section II - Who Is
An Insured or any “employee” authorized by you to give or
receive notice of an “occurrence” or claim, includes any
continuation, change or resumption of that . . .“property
damage” after the end of the policy period.

“Occurrence” was defined in both polices as “an accident, including continuous or

repeated exposure to substantially the same general harmful conditions.” The

limits of each policy were $1,000,000.00 for each “occurrence,” a general

aggregate limit of $2,000,000.000, and a deductible of $5,000.00 per occurrence.

In effecting our de novo review of the district court’s granting of Fireman’s

Fund’s motion for partial summary judgment, we must examine: (1) what was the

“Occurrence;” (2) whether there was a single or two occurrences; and (3) what

policy or policies were triggered.

11

“Occurrence”

“Occurrence” is defined in both polices as “an accident, including

continuous or repeated exposure to substantially the same general harmful

conditions.” In Rando v. Top Notch Props., 03-1800, pp. 7, 18 (La. App. 4 Cir.

6/2/04), 879 So.2d 821, 827, 834, this Court, in interrupting the meaning of

“Occurrence”12 in a CGL policy defined the same as in the Westchester policies,

concluded that “the clear weight of authority [Louisiana jurisprudence] in more

recent cases considers defects in construction that result in damage subsequent to

completion to be accidents and occurrences when they manifest themselves.” See

also, Iberia Par. Sch. Bd. v. Sandifer & Son Const. Co., 98-319 (La. App. 3 Cir.

10/28/98), 721 So.2d 1021 (wherein the Third Circuit interpreted “Occurrence,”

defined similarly in a CGL policy as the current polices, as an “‘accident, including

continuous or repeated exposure to same general harmful conditions.’” The Court

concluded the alleged improper construction of the roof that resulted in numerous

leaks was an “accident or ‘occurrence.’”); Massey v. Parker, 98-1497, pp. 3-4 (La.

App. 3 Cir. 3/3/99), 733 So.2d 74, 75 (defects in home construction constituted an

occurrence).13

12
The policy at issue in Rando defined “Occurrence” as “an accident, including continuous or
repeated exposure to substantially the same general harmful conditions.” Id.
13
In Atain Specialty Ins. Co. v. Siegen 7 Developments, L.L.C., No. CV 18-00850, 2019 WL
4247827, at *4 (M.D. La. Sept. 6, 2019), the federal district court, in interrupting “Occurrence”
in a CGL policy defined as in the Westchester policy, noted:

12

Review of the record shows that Rice Mill submitted evidence to show that

the alleged defective masonry restoration was the “Occurrence” as defined by the

Westchester CGL policies. Conversely, Fireman’s Fund submitted no evidence to

refute Rice Mill’s contention that the alleged defective masonry restoration was the

“Occurrence.” Thus, based on our de novo review, and the unambiguous language

of the Westchester CGL policies, we conclude that the “Occurrence” was the

alleged defective masonry restoration.

Single vs. two occurrences

Rice Mill asserts there was a single occurrence which was the continuous or

repeated exposure to the defective masonry restoration; whereas, Fireman’s Fund

contends there were two occurrences—Tropical Storm Lee, which occurred during

the Westchester 2011-2012 CGL policy, and Hurricane Isaac, which occurred

during the Westchester 2012-2013 CGL policies.

Although there are no cases directly on point, there were several cases from

this Court we reviewed for guidance on this issue.

In Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905

(La. 1973), which is cited by both parties over one-hundred plaintiffs

sought to recover damages from the City of New Orleans (the “City”), the City’s

CGL insurer, Travelers Insurance Company, the Sewerage and Water Board, and

Boh Brothers Construction Company, Inc. The City hired Boh Brothers to do a

canal construction project, which lasted for more than a year. Travelers issued two

CGL policies to the City which were in effect during the construction project. The

13

plaintiffs claimed various forms of property damage to their houses, school

buildings, a business, and a church caused by excavation, pile driving, and other

activities carried on during the course of the construction project. Because the

construction progressed from street to street, plaintiffs were not impacted

necessarily at the same time; plaintiffs, whose streets were not under construction

were not impacted until construction began on their streets. Travelers Insurance

Company asserted there was a single occurrence and each $50,000.00 policy limit

was applicable,14 and the trial court agreed. The Supreme Court, however,

reversed the trial court explaining that the word “Occurrence” as used in the policy

must be construed from the point of view of the many persons whose property was

damaged. The Supreme Court found that when the separate property of each

plaintiff was damaged by a series of events—i.e. plaintiffs sustaining property

damage on different streets, some at the same and some at different times, in

varying degrees, during different policy periods—one occurrence was involved

insofar as each property owner was concerned. The Supreme Court explained:

[T]he construction started at Florida Avenue and proceeded down
Louisa Street in the direction of Claiborne Avenue and the River. On
May 25, 1963, the date the second Travelers policy became effective
and the first one terminated, work had progressed as far as the
intersection of Louisa and North Tonti Streets. This means the
construction work had progressed four blocks, and obviously could
only effect the owners of property within that area of the job. The
buildings affected are those in the 2300, 2400, 2500 and 2600 blocks
of Louisa Street; and, of course, all claims for damage on cross streets

14
The Travelers’ policies provided:

Occurrence means either an accident or a continuous or repeated exposure to
conditions which results during the policy period in injury to person or real or
tangible property which is accidentally caused. All damages arising out of such
exposure to substantially the same general conditions shall be considered as
arising out of one occurrence.

Lombard, 284 So.2d at 915.

14

within that area. The remaining plaintiffs would necessarily fall under
the terms of the second Travelers policy effective May 25, 1963. As
our finding of fact shows, this job began on December 4, 1962 and
was accepted as completed in March 1964.

Lombard, 284 So.2d at 915. See also, Marshall v. Air Liquide-Big Three, Inc., 11-

0990 (La. App. 4 Cir. 9/7/12), 107 So.3d 13, 42, decision clarified on reh’g (Oct.

5, 2012) (citations omitted) (wherein plaintiffs, who lived near an acetylene

manufacturing facility and were exposed to carbide lime over a five-month period,

filed a class action suit, and this Court held, following Lombard, “[i]t is

longstanding Louisiana law that when the separate property of each plaintiff was

damaged by a series of events, one occurrence[15] was involved as far as each

property owner was concerned.”) Id., 11-0990, p. 49, 107 So.3d at 44.

In Thebault v. Am. Home Assur. Co., 15-0800 (La. App. 4 Cir. 4/20/16), 195

So.3d 113, Touro Infirmary contracted with Aggreko to provide a generator and an

external fuel tank to give emergency power to the cooling system for the first three

floors of the hospital. Aggreko delivered the generator and fuel tank shortly before

Hurricane Katrina made landfall. Touro maintained that the tank was not full of

fuel as required by the contract, the hospital lost power at 3:00 a.m. on August 29,

2005, and the Aggreko generator failed within hours of being put into service. The

plaintiff, father of a premature baby who was exposed to “unreasonably

dangerous” heat and humidity due to the power loss, filed suit and included

Aggreko and American Home, Aggreko’s commercial general liability insurer, as

defendants. Id., 15-0800, p. 2, 195 So.3d at 115. Forty-one other similar but

separate lawsuits were pending against Aggreko and American Home stemming

from the loss of power. American Home filed a motion for partial summary

15
“Occurrence” was defined in CGL policy the same as in the Westchester CGL policies.

15

judgment seeking a declaration that Aggreko, as the insured, was responsible for a

separate $50,000.00 per occurrence retained limit for each plaintiff with similar

lawsuits pending against Touro. American Home argued that the plaintiffs in the

separate actions each experienced different exposures to the alleged heat and

humidity, over different periods of time, and in different locations within the

building. Aggreko, in turn, argued it should be a single $50,000.00 retained limit

because the claims of the various plaintiffs arose out of a single occurrence—the

loss of power. The trial court granted American Home’s motion for partial

summary judgment. On appeal, this Court reversed and concluded there was a

single “occurrence” under the policy.16 In distinguishing Lombard, 284 So.2d 905,

this Court noted:

The loss of power (or failure of the generator) in this case
constituted a single occurrence, not a series of events occurring over
time. Thus, the term occurrence is not determined from the
perspective of each plaintiff’s individual damages, but rather, from
the manner in which it is defined in the policy.”

Id., 15-0800, p. 8, 195 So.3d at 118 (emphasis added).

In the case sub judice, unlike Lombard, there was a single plaintiff and a

single “Occurrence,” as defined by the Westchester CGL policy, which was the

continuous or repeated exposure to the alleged defective masonry restoration that

resulted in property damage to the apartment complex.

Applicable policy

16
Under the pertinent policy, “occurrence” was used as “[t]he ‘Retained Limit’, applying only to
damages for ‘occurrences’ or offenses covered under this policy, is $50,000 per ‘occurrence’ or
offense. . . . [t]he sum of all damages under Coverage A and medical expenses under Coverage
C, because of all ‘bodily injury’ and ‘property damage’ arising out of any one occurrence.” Id.,
15-0800, pp. 4-5, 195 So.3d at 116.

16

Having determined there was a single occurrence, we find the Westchester

2011-2012 CGL policy was triggered as the parties agree that the first water

intrusion occurred in 2011.17 The Westchester 2011-2012 CGL policy pertinently

provided that Westchester would pay property damage to Rush, it was “legally

obligated to pay as damages because of . . . ‘property damage,’” if the “‘property

damage’ occurs during the policy period,” and “includes any continuation, change

or resumption of that . . . ‘property damage’ after the end of the policy period.”

See Marshall, 11-0990, p. 54, 107 So.3d at 47 (wherein this Court held that the

policies at issue were “occurrence” based forms which meant the loss must have

occurred during the policy period).

Based on our de novo review, the unambiguous language of the policies, and

applicable jurisprudence, we conclude that there was a single occurrence that

triggered coverage under the Westchester CGL 2011-2012 policy. Thus, the

district court erred in granting Fireman’s Fund’s motion for partial summary

judgment.

Property damages

17
In La. Civ. L. Treatise, Insurance Law & Practice § 6:5 (4th ed.)(footnotes omitted), discusses
coverage of construction defects in an occurrence policy with language similar to the present
case:

Under Louisiana jurisprudence, the “accident” is the negligent act or omission or
other fault that caused the loss. The policy, however, is quite clear that the
“accident” is not the event that triggers coverage. Instead, Subsection b(2) [“‘
property damage’ occurs during the policy period”] requires that the “property
damage” occur within the policy period. “Property damage” is a defined term that
includes primarily “physical injury to tangible property.” Thus, the contractor’s
CGL policy is triggered if the construction defect causes “property damage”
during the policy term—that is, causes “physical injury to tangible property.” The
defective construction itself does not trigger coverage under the CGL policy.
Instead, coverage is triggered under the CGL policy in effect when that defect
causes physical injury to tangible property (e.g., the roof leaks or the wall
collapses). When the physical injury occurred is a factual and legal issue.

17

Rice Mill asserts all the property damages it suffered would be covered

under the Westchester 2011-2012 CGL policy; whereas, Fireman’s Fund contends,

if the Westchester 2011-2012 CGL policy is triggered, only those proven property

damages sustained during the policy period are covered. However, this issue is not

properly before this Court as Fireman’s Fund limited its motion for partial

summary judgment filed in the district court to whether there were two occurrences

triggering both policies. See La. C.C.P. art. 966 (F) (“A summary judgment may be

rendered or affirmed only as to those issues set forth in the motion under

consideration by the court at that time.”).

CONCLUSION

For the foregoing reasons, the district court’s judgment is reversed and the

matter is remanded to the district court for further proceedings consistent with this

opinion.

REVERSED; REMANDED.

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