Bankers Insurance Company v. Emiii Holdings, LLC

BANKERS INSURANCE * NO. 2024-CA-0386
COMPANY
*
VERSUS COURT OF APPEAL
*
EMIII HOLDINGS, LLC FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-04489, DIVISION “H”
Honorable Monique E. Barial, Judge
******
Judge Dale N. Atkins
******
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Dale
N. Atkins)

J. Michael Nash
Wayne R. Maldonado
Brett F. Willie
UNGARINO & MALDONADO, LLC
3850 North Causeway Blvd, Suite 1280
Metairie, LA 70002

COUNSEL FOR PLAINTIFF/APPELLEE, Bankers Insurance Company

Joseph Paul Rumage, Jr.
THE LAW OFFICE OF PAUL RUMAGE
P. O. Box 1174
Denham Springs, LA 70727

COUNSEL FOR DEFENDANT/APPELLANT, EMIII Holdings, L.L.C.

REVERSED AND REMANDED
DECEMBER 16, 2024

DNA

RLB

DLD

This dispute stems from an insurance claim filed after Hurricane Ida struck

Louisiana on August 29, 2021.1 Appellant, EMIII Holdings, L.L.C. (“EMIII”),

seeks review of the trial court’s February 12, 2024 judgment, which granted the

Motion for Summary Judgment filed by Appellee, Bankers Insurance Company

(“Bankers”); dismissed EMIII’s claims against Bankers (asserted in reconvention)

with prejudice; and dismissed as moot Bankers’ Complaint for Declaratory

Judgment. For the following reasons, we reverse the trial court’s February 12, 2024

judgment and remand this matter for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Bankers’ May 20, 2022 Complaint for Declaratory Judgment

On May 20, 2022, Bankers filed a “Complaint for Declaratory Judgment”

(“Complaint”) in Civil District Court for the Parish of Orleans, wherein it named

1 This Court may take judicial notice of government websites. Hidalgo v. Bd. of
Supervisors of La. State Univ. & Agric. & Mech. Coll. on Behalf of La. State Univ. Health Scis.
Ctr.-New Orleans, 2024-0609, p. 3 (La. App. 4 Cir. 9/25/24), ___ So.3d ___, ___ n.1, 2024 WL
4284307, at *1 (citing State v. Debose, 2024-0217, p. 4 (La. App. 4 Cir. 6/13/24), 390 So.3d 971,
975). Accordingly, we take judicial notice of the National Ocean Service: National Oceanic and
Atmospheric Administration’s website, which states that “Hurricane Ida made landfall as [a]
Category 4 hurricane in Lafourche Parish near Port Fourchon, Louisiana . . . . Landfall occurred
at 11:55 a.m. on August 29, 2021.” Hurricane Ida: NOS Fiscal Year 2021 Year in Review,
NATIONAL OCEAN SERVICE: NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,
https://oceanservice.noaa.gov/annualreport/2021/hurricane-
ida.html#:~:text=Hurricane%20Ida%20made%20landfall%20as,a.m.%20on%20August%2029%
2C%202021 (last visited Nov. 18, 2024).

1

EMIII as the sole defendant and explained that EMIII owned property insured by

Bankers under Builders’ Risk Policy No. 17-0400025453-5-01 (hereinafter

referred to as “the insurance policy”). According to Bankers’ Complaint, EMIII

reported a loss from Hurricane Ida at the insured premises located at 2324

Reverend John Raphael Jr. Way in New Orleans, LA 70113 (“2324 Rev. John

Raphael Jr. Way”) but failed to provide Bankers with information or to complete

an examination under oath as requested by Bankers in its investigation of the

claim. Bankers listed the dates it attempted via email to request claim-related

documents and schedule EMIII’s examination under oath as January 20, 2022;

February 1, 2022; February 15, 2022; and February 25, 2022. Additionally,

Bankers listed the dates it attempted via written correspondence to request claim-

related documents and schedule EMIII’s examination under oath as March 25,

2022; April 13, 2022; and May 2, 2022. Attached as exhibits to Bankers’

Complaint were copies of the aforementioned emails and written correspondence.

Bankers contended that EMIII’s failure to cooperate constituted a breach of the

terms and conditions of the insurance policy. Accordingly, Bankers requested that

the trial court find that no coverage existed and declare coverage “void as the

failure to cooperate ha[d] materially prejudiced Banker’s [sic] investigation of this

hurricane claim.”

Also attached to Bankers’ Complaint was a copy of the insurance policy,

which listed the insured property as 2324 Reverend John Raphael Jr. Way. It listed

the policy period as July 9, 2021, through October 9, 2021. It stated, in pertinent

part:

PROJECT LOCATION: 2324 REVEREND JOHN RAPHAEL JR,
NEW ORLEANS LA 70113

2

(single building only; with no permission to occupy in whole or in
part)

PERMISSION TO OCCUPY (check one)

[ X ] Permission to occupy is not granted.

....

AGREEMENT

In return for “your” payment of the required premium, “we” provide
the coverage described herein subject to all the “terms” of the
Builders’ Risk Coverage.

....

WHAT MUST BE DONE IN CASE OF LOSS

....

4. Examination - - “You” must submit to examination under oath in
matters connected with the loss as often as “we” reasonably request
and give “us” sworn statements of the answers. If more than one
person is examined, “we” have the right to examine and receive
statements separately and not in the presence of others.

5. Records - - “You” must produce records, including tax returns and
bank microfilms of all canceled checks relating to value, loss, and
expense and permit copies and extracts to be made of them as often
as “we” reasonably request.

....

9. Cooperation - - “You” must cooperate with “us” in performing all
acts required by this policy.

....

ADDITIONAL COVERAGE LIMITATIONS

1. Occupancy And Use -- We do not provide coverage under this
policy if, without “our” prior written consent, a covered “building or
structure” as described under Property Covered is:

a. occupied in whole or in part;

3

EMIII’s February 15, 2023 Exceptions, Answer, and Reconventional Demand

On February 15, 2023, EMIII filed a pleading titled “Exceptions, Answer &

Reconventional Demand” (“Reconventional Demand”). Therein, in addition to

answering Bankers’ Complaint, EMIII asserted the exceptions of prematurity,

peremption, no cause of action, and no right of action. Additionally, in its

Reconventional Demand, EMIII contended that it had taken all actions required by

the insurance policy; that its claim for loss filed with Bankers had not yet been

resolved; and that it was entitled to compensation from Bankers as outlined in the

insurance policy. Specifically, EMIII sought costs to repair the insured property;

costs of damage mitigation; and other costs and expenses as allowed by law. EMIII

requested that the trial court dismiss Bankers’ Complaint and render judgment in

EMIII’s favor.

Bankers’ September 8, 2023 Motion for Summary Judgment

On September 8, 2023, Bankers filed its Motion for Summary Judgment,

wherein it contended that it was entitled to a summary judgment granting its

declaratory judgment based on EMIII’s violation of two provisions of the

insurance policy, namely (1) the no occupancy provision, and (2) the failure to

cooperate with Bankers’ investigation of the claim.

In its Motion for Summary Judgment, Bankers explained that after

Hurricane Ida made landfall on August 29, 2021, EMIII opened a claim for

hurricane-related damages on September 9, 2021, for the property it owns at 2324

Rev. John Raphael Jr. Way. Bankers further explained that it had issued the

insurance policy to EMIII covering 2324 Rev. John Raphael Jr. Way with a policy

period from July 9, 2021, through October 9, 2021. According to Bankers, EMIII

reported damage to the property’s roof, siding, doors, and windows, as well as

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interior water damage. Bankers stated that an independent adjuster inspected the

property on September 22, 2021, and October 9, 2021, and issued a report on

November 5, 2021. The independent adjuster’s report listed the property as a two-

story apartment building containing eight units with two of the units occupied and

six under construction.

In support of its first argument that EMIII violated the occupancy provision

of the insurance policy, Bankers attached as an exhibit the independent adjuster’s

report, which stated, in pertinent part as described above, that two of the property’s

units were occupied. Additionally, Bankers contended that in a recorded sworn

statement of EMIII taken by Bankers on approximately December 10, 2021, EMIII

stated that two of the units in the subject property were occupied at the time of

Hurricane Ida and had been occupied for several years. Bankers attached this

recorded statement as an exhibit to its Motion for Summary Judgment, but this is

not part of the record on appeal. Bankers further attached residential leases for

Dominic Lewis and Pedro Costillo, which it contended demonstrated that part of

the property was being occupied at the time of Hurricane Ida, but these leases are

also not part of the record on appeal. Bankers then pointed to the pertinent

sections of the insurance policy, which stated that there was no permission to

occupy the property in whole or in part. Bankers asserted that the aforesaid

occupancy of two of the units meant that there was no coverage under the

insurance policy.

Turning to its second argument, Bankers contended that EMIII had failed to

cooperate with its investigation of the claim in violation of the insurance policy

thereby rendering the policy void. In particular, Bankers asserted that “after

[EMIII] reported its claim for losses attributable to Hurricane Ida, [Bankers]

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repeatedly requested information/documentation relating to the claim and has

repeatedly requested that [EMIII] participate in an examination under oath.”

However, according to Bankers, EMIII “consistently refused to cooperate and

failed to provide the requested documentation and likewise failed to provide an

examination under oath to be conducted by [Bankers] which was necessary to the

ongoing investigation of [EMIII]’s claim.” In support of this argument, Bankers

attached as exhibits the emails and written correspondence requesting documents

and an examination under oath, which it had also attached to its Complaint (as

explained previously). Additionally, in support of this argument, Bankers cited to

this Court’s Opinion in, Lee v. United Fire & Cas. Co., 607 So.2d 685 (La. App.

4th Cir. 1992), as well as an opinion by the Louisiana Second Circuit Court of

Appeal, Brantley v. State Farm Ins. Co., 37,601 (La. App. 2 Cir. 1/28/04), 865

So.2d 265. Bankers contended that these cases supported its proposition that an

insured’s repeated failure to provide information requested by an insurer violates

an insurance contract’s cooperation clause and justifies dismissal of the insured’s

claim.

In support of its Motion for Summary Judgment, Bankers also attached the

insurance policy. The trial court set the hearing on Bankers’ Motion for Summary

Judgment for November 17, 2023.

EMIII’s November 7, 2023 Opposition to Motion for Summary Judgment,
and Alternatively Motion to Continue Hearing on Motion for Summary
Judgment

On November 7, 2023, EMIII filed an “Opposition to Motion for Summary

Judgment, and Alternatively Motion to Continue Hearing on Motion for Summary

Judgment” (“Opposition”). In that part of its Opposition wherein it sought a

continuance, EMIII argued that summary judgment is only appropriate after the

6

parties have had a reasonable opportunity for discovery. EMIII contended that

there had not yet been a reasonable opportunity for discovery in this matter

because discovery could not proceed until the satisfaction of a Streamlined

Settlement Program (“SSP”) implemented by a Case Management Order (“CMO”)

issued by the trial court to handle Hurricane Ida claims. EMIII stated that

completion of the SSP did not occur until after November 8, 2023.

EMIII argued that even if the trial court were to deem its Opposition

untimely (i.e., because EMIII filed it only ten days before the scheduled hearing on

Bankers’ Motion for Summary Judgment), the trial court nonetheless should not

rule in Bankers’ favor unless Bankers satisfied its burden of proving that there was

no genuine issue as to material fact and that it was entitled to judgment as a matter

of law. EMIII contended that Bankers failed to meet its burden of proof because

the “undisputed facts” in its Motion for Summary Judgment constituted hearsay

and Bankers had no other competent evidence to point out an item of proof that

EMIII could not ultimately satisfy at trial. In particular, EMIII asserted that 2314

Rev. John Raphael Jr. Way and 2316 Rev. John Raphael Jr. Way were occupied,

not 2324 Rev. John Raphael Jr. Way, and that Bankers had not offered any

competent evidence that the occupancy of 2314 and 2316 Rev. John Raphael Jr.

Way would void the insurance contract for 2324 Rev. John Raphael Jr. Way. That

is, EMIII asserted that the insurance contract only prohibited the occupancy of

2324 Rev. John Raphael Jr. Way, which was distinct from 2314 and 2316 Rev.

John Raphael Jr. Way. EMIII further argued that Bankers was in error in its

Motion for Summary Judgment by representing that EMIII did not cooperate in the

investigation of the insurance claim. To this end, EMIII stated it was examined by

Bankers under oath and assisted with the inspection of the property at least twice.

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EMIII also stated that while Bankers sought a second examination under oath one

month after the first examination under oath, Bankers failed to establish that the

second examination was “reasonably” necessary, thus justifying EMIII’s failure to

participate.

In support of its Opposition, EMIII attached six exhibits: 1) Affidavit of Earl

Myers II; 2) Case Management Order; 3) Survey of 2316 and 2324 Rev. John

Raphael, Jr., Way; 4) Insurance Contract between EMIII and Bankers; 5) Lease for

Pedro Castillo for 2314 Rev. John Raphael, Jr., Way; and 6) Lease for Dominic

Lewis for 2316 Rev. John Raphael, Jr., Way.

November 15, 2023 Order Resetting the Motion for Summary Judgment
Hearing

On November 15, 2023, the trial court signed an order, which reset the

Hearing on Bankers’ Motion for Summary Judgment to January 26, 2024. The

order stated:

This matter is scheduled to come before the court on November
17, 2023. Due to a court scheduling conflict, the Motion for Summary
Judgment filed on behalf of Bankers Insurance, LLC[,] needed to be
reset.

The parties participated in the selection of the new court date
and the date January 26, 2024[,] at 9:00 am was agreed upon.

After coordinating the new hearing date, the Court was advised
that the matter which caused the scheduling conflict was resolved.
The parties were advised of the resolution; however, the attorneys
could not agree to either proceed on the original hearing date of
November 17, 2023[,] or to reset to January 26, 2024[,] as previously
agreed to.

After a brief telephone conference with court personnel and
attorneys Brett Willie and Paul Rumage, the Court on its own Motion
hereby resets the matter.

Accordingly,

8

IT IS ORDERED that the hearing on the Motion for Summary
Judgment as filed on behalf of Bankers Insurance, LLC shall be reset
to January 26, 2024, at 9:00 am.

IT IS FURTHER ORDERED that this Court will adhere to
the filing deadlines as governed by La. C.C.P. art. 966 in accordance
with the instant Motion for Summary judgment’s original hearing date
of November 17, 2023.

Thereafter, the trial court held the hearing on the reset date of January 26, 2024.

January 26, 2024 Hearing

On January 26, 2024, the trial court held the hearing on Bankers’ Motion for

Summary Judgment. Counsel for Bankers contended that EMIII’s November 7,

2023 Opposition was untimely and should not be considered by the trial court. The

trial court agreed and refused to consider EMIII’s untimely opposition or to allow

counsel for EMIII to argue at the hearing.

In support of the Motion for Summary Judgment, counsel for Bankers

argued that EMIII had violated the occupancy provision of the insurance policy.

The trial court asked what proof Bankers had that EMIII violated the occupancy

provision, whereupon the following colloquy occurred:

[COUNSEL FOR BANKERS]:
One, Judge[,] in the insured’s recorded statement with the
representative of the insurance company, . . . the insured’s
representative admitted that two of the units were occupied.

THE COURT:
Is this a four unit?

[COUNSEL FOR BANKERS]:
[It is] an eight unit apartment building, two story, two of the
units -- [it is] a single building -- two of the units were occupied for
years, in the recorded statement the insured admits that two of the
units had been occupied for years. And we have copies of the leases
for those two units from those individuals occupying the premises.

So as such, [that is] also a material breach of the policy, Your
Honor. And we would again ask the court deem coverage [sic] and
grant Bankers Motion for Summary Judgment.

9

THE COURT:
Were the leases executed prior to or after the builder’s risk
insurance was put in place?

[COUNSEL FOR BANKERS]:

....

One of the leases was executed October 20, 2020, another lease
was executed on October 31, 2020.

THE COURT:
And the [insurance policy] was put into place when?

[COUNSEL FOR BANKERS]:
I believe the policy had a valid period effective from July 9,
2021[,] to October 9, 2021.

THE COURT:
Well the existence of a lease prior to the [insurance policy]
being put in place, [does not] demonstrate that the building was
occupied, it just simply indicates that a lease was put in place in
advance of the insurance policy being put into place.

What other support do you have in furtherance of that
assertion?

[COUNSEL FOR BANKERS]:
Well, we have the insured’s recorded statement to the insurance
company admitting to such, Your Honor. And we would have been
able to get that evidence on examination under oath, which would
have been one of the first questions asked, Your Honor, but we were
prevented from doing so.

THE COURT:
Do you have an affidavit indicating the existence of the
recorded statement and was that attached to the Motion for Summary
Judgment?

[COUNSEL FOR BANKERS]:
I [do not] believe we have an affidavit attest[ing] to that.

THE COURT:
Then I cannot consider that.
So do you have anything else that was attached to the Motion
for summary Judgment on that issue?

[COUNSEL FOR BANKERS]:

10

No, Your Honor.

THE COURT:
Okay. So on that issue, you fail.

Thus, the foregoing excerpt demonstrates that the trial court found that Bankers

had not met its burden of proof on the occupancy issue.

In further support of the Motion for Summary Judgment, counsel for

Bankers explained that Bankers sent four email requests and three written requests

for documents and for EMIII to sit for an examination under oath, which “requests

were ignored” by EMIII. Counsel for Bankers argued that this non-compliance

constituted a material breach of the insurance policy’s cooperation provision and

prejudiced Bankers in its investigation of EMIII’s claim, so as to warrant deeming

the coverage voided and granting Bankers’ Motion for Summary Judgment.

Counsel for Bankers then showed the trial court judge the emails and written

correspondence, which the trial court reviewed along with the insurance policy and

subsequently stated:

THE COURT:
The letter dated March 25, 2022[,] indicates that this letter is
indeed the sixth request to take the client’s examination under oath
pursuant to the terms of policy. Further it indicates prior dates when
they made such written requests; being January 20, 2022, February 1,
2022, February 15, 2022, February 25, 2022, and again on March 10,
2022.

The letter goes on to request that there be a response providing
dates that the client is available for examination.

Seventh request was sent on April 13, 2022[,] containing the
same information along with the date of the last letter and requesting
documents. The previous letter requested documents also.

The eighth request dated May 2, 2022, which is also attached as
part of Exhibit C, including those same dates and the same requests
for documents.

....

11

Motion [for] Summary Judgment is granted for those reasons.

In light of the foregoing transcript excerpt, the trial court granted Bankers’ Motion

for Summary Judgment on the basis of EMIII’s alleged non-compliance with

Bankers’ investigation of the claim.

February 12, 2024 Judgment

On February 12, 2024, the trial court signed a judgment, which stated, in

pertinent part:

This matter came before the Court on the 26th day of January
2024 on Bankers Insurance Company’s Motion for Summary
Judgment.

....

Considering the pleadings, motions, memoranda, exhibits,
arguments of counsel, and the law, and for the reason orally assigned
at the hearing:

IT IS ORDERED, ADJUDGED AND DECREED that the
Motion for Summary Judgment filed by Bankers Insurance Company
be, and is hereby GRANTED. All of the claims asserted against
Bankers Insurance Company by Plaintiff in Reconvention, EMIII
Holdings, LLC, are hereby dismissed with prejudice.

IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED, that Bankers Insurance Company’s Complaint for
Declaratory Judgment is dismissed as moot.

EMIII’s timely appeal followed.

ASSIGNMENTS OF ERROR

In its brief to this Court, EMIII asserts three assignments of error.

Specifically, it contends:

1. The Trial Court made an error of fact when it ruled that the
occupancy of 2314 and 2316 Rev. John Raphael, Jr., Way, New
Orleans, LA was a breach of the contract that required 2324
Rev. John Raphael, Jr., Way, New Orleans, LA[,] to remain
unoccupied.

12

2. The Trial Court made an error of fact when it ruled that the
occupancy of 2314 and 2316 Rev. John Raphael, Jr., Way, New
Orleans, LA annulled the contract for insurance for 2324 Rev.
John Raphael, Jr., Way, New Orleans, LA.

3. EMIII Holdings, L.L.C.[,] satisfied all of its obligations and
duties under its contract with Bankers Insurance. No contract
required EMIII Holdings to allow monthly inspections of the
insured propwerty [sic] after Bankers Insurance inspected the
property.

Before considering the merits of EMIII’s assignments of error, we begin with the

standard of review and principles applicable to the summary judgment process.

DISCUSSION

Summary Judgment Principles and Standard of Review

“The summary judgment procedure is designed to secure the just, speedy,

and inexpensive determination of every action . . . .” La. C.C.P. art. 966(A)(2). It

“is favored and shall be construed to accomplish these ends.” Id. A trial court

grants a motion for summary judgment if “[a]fter an opportunity for adequate

discovery,” the mover’s “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 on a motion for summary judgment “rests with the

mover.” La. C.C.P. art. 966(D)(1). Specifically, “[t]he party seeking summary

judgment has the burden of proving there is no genuine issue of material fact.”

Haynes v. Sewerage & Water Bd. of New Orleans, 2023-0678, p. 13 (La. App. 4

Cir. 7/31/24), ___ So.3d ___, ___, 2024 WL 3593653, at *6 (quoting LZM Props.,

LLC v. Priv. Connection Prop., Inc., 2023-0707, 0708, p. 14 (La. App. 4 Cir.

4/25/24), 390 So.3d 861, 871). This Court has previously explained that “‘[a]

genuine issue is’ defined as ‘a triable issue.’” Id. (quoting LZM Props., LLC, 2023-

13

0707, 0708, p. 14, 390 So.3d at 872). More particularly, “an issue is genuine if

reasonable persons could disagree” about it. Id. at pp. 14-15, ___ So.3d at ___,

2024 WL 3593653, at *6 (quoting LZM Props., LLC, 2023-0707, 0708, p. 15, 390

So.3d at 872). “[T]here is no need for a trial on [an] issue,” however, if “reasonable

persons could reach only one conclusion” after reviewing “the state of the

evidence.” Id. at p. 14, ___ So.3d at ___, 2024 WL 3593653, at *6 (quoting LZM

Props., LLC, 2023-0707, 0708, p. 15, 390 So.3d at 872). A fact “whose ‘existence

or non-existence may be essential to the plaintiff’s cause of action under the

applicable theory of recovery’” is considered a material fact. Id. A material fact is

further defined as one that “potentially insure[s] or preclude[s] recovery, affect[s] a

litigant’s ultimate success, or determine[s] the outcome of the legal dispute.” Id. A

court looks at “the substantive law applicable to the case” to determine if a

particular disputed fact is material or not “because the applicable substantive law

determines materiality.” Id.

If the movant proves “that there is no genuine issue of material fact,”

thereby satisfying the initial burden of proof, at that point “the burden shifts to the

party opposing summary judgment to present factual support sufficient to show he

[or she] will be able to satisfy the evidentiary burden at trial.” Id. at p. 14, ___

So.3d at ___, 2024 WL 3593653, at *7 (quoting LZM Props., LLC, 2023-0707,

0708, p. 15, 390 So.3d at 872). If the party moving for summary judgment “will

not bear the burden of proof at trial on the issue that is before the court on the

motion for summary judgment,” then “the mover’s burden on the motion does not

require him [or her] 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.”

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La. C.C.P. art. 966(D)(1). Only once “the motion has been made and properly

supported” does “the burden shift[] from the mover to the adverse party.” Haynes,

2023-0678, p. 15, ___ So.3d at ___, 2024 WL 3593653, at *7 (quoting LZM

Props., LLC, 2023-0707, 0708, p. 15, 390 So.3d at 872).

When the burden shifts, “the adverse party [must] 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). To

produce such support, “[the] adverse party may not rest on the mere allegations or

denials of his [or her] pleading, but his [or her] response, by affidavits or as

otherwise provided . . . , must set forth specific facts showing that there is a

genuine issue for trial.” La. C.C.P. art. 967(B). In considering a motion for

summary judgment, “the trial court cannot make credibility determinations but

must construe reasonable factual inferences in favor of the party opposing the

motion, resolving all doubt in favor of the opponent.” Haynes, 2023-0678, p. 15,

___ So.3d at ___, 2024 WL 3593653, at *7 (quoting LZM Props., LLC, 2023-0707,

0708, p. 16, 390 So.3d at 872). Once the burden shifts, if the party opposing the

motion fails to establish the existence of a genuine issue for trial, “summary

judgment, if appropriate, shall be rendered against him [or her].’” La. C.C.P. art.

967(B). “This is because ‘[w]hen the party opposing the motion for summary

judgment fails to provide factual evidence sufficient to establish that he [or she]

will be able to satisfy his [or her] evidentiary burden of proof at trial, there is no

genuine issue of material fact and summary judgment is appropriate.’” Haynes,

2023-0678, p. 15, ___ So.3d at ___, 2024 WL 3593653, at *7 (quoting LZM

Props., LLC, 2023-0707, 0708, p. 16, 390 So.3d at 872).

15

On appeal, appellate courts review a trial court’s ruling on a motion for

summary judgment de novo and “use[] the same criteria that govern the trial

court’s determination of whether summary judgment is appropriate.” Id. at p. 16,

___ So.3d at ___, 2024 WL 3593653, at *7 (quoting LZM Props., LLC, 2023-0707,

0708, p. 16, 390 So.3d at 872-73). That is, to answer whether summary judgment

was appropriate, an “appellate court[] ask[s] the same questions the trial court

does,” particularly “whether there is any genuine issue of material fact, and

whether the mover is entitled to judgment as a matter of law.” Id. (quoting LZM

Props., LLC, 2023-0707, 0708, pp. 16-17, 390 So.3d at 872).

Before looking to the substantive law to determine whether the trial court

did or did not err in granting Bankers’ Motion for Summary Judgment, we discuss

a preliminary matter. As stated previously, the trial court declined to consider

EMIII’s Opposition on the basis of untimeliness, and this Court must also decide

whether it is legally appropriate to consider it in our resolution of this appeal.

Whether the Trial Court Erred in Refusing to Consider EMIII’s Opposition
and Whether this Court Should Consider It

As previously stated, EMIII filed its Opposition on November 7, 2023,

which was only ten days before the hearing on Bankers’ Motion for Summary

Judgment was scheduled to take place on November 17, 2023). This was untimely

based on the plain language of La. C.C.P. art. 966(B)(2), which requires an

opposition to a motion for summary judgment to be filed at least fifteen days

before the scheduled hearing. On November 15, 2023, “[d]ue to a court scheduling

conflict,” the trial court signed an order, which reset the hearing on Bankers’

Motion for Summary Judgment to January 26, 2024, but ordered that the trial court

would “adhere to the filing deadlines as governed by La. C.C.P. art. 966 in

16

accordance with the instant Motion for Summary Judgment’s original hearing date

of November 17, 2023.” Bankers contends in its brief to this Court that despite the

rescheduled, later hearing date, EMIII’s Opposition was nonetheless untimely.

Outlining the deadlines regarding motions for summary judgment, La.

C.C.P. art. 966 provides, in pertinent part:

B. Unless extended by the court and agreed to by all of the
parties, a motion for summary judgment shall be filed, opposed, or
replied to in accordance with the following provisions:

....

(2) Except for any document provided for under
Subsubparagraph (A)(4)(b) of this Article, any opposition to the
motion and all documents in support of the opposition shall be filed
and served in accordance with Article 1313(A)(4) not less than fifteen
days prior to the hearing on the motion.

La. C.C.P. art. 966(B)(2). In interpreting this provision the Louisiana Supreme

Court has held that because of the mandatory language contained therein (i.e., use

of the word “shall”) and its legislative history, the courts cannot extend the

deadline to file an opposition to a motion for summary judgment:

The clear and unambiguous language of Article 966(B)(2) says
that, absent the consent of the parties and the court, an opposition
shall be filed within the fifteen-day deadline established by the article.
The word “shall” is mandatory. La. R.S. 1:3.[2] Under well-established
rules of interpretation, the word “shall” excludes the possibility of
being “optional” or even subject to “discretion,” but instead means
“imperative, of similar effect and import with the word ‘must.’” [La.]
Fed’n of Tchrs. v. State, 2013-0120 (La. 5/7/13), 118 So.3d 1033,
1051. This interpretation also does not lead to absurd consequences.
Summary judgments are intended “to secure the just, speedy, and
inexpensive determination of every action.” La. [C.C.]P. art.
966(A)(2). Limiting judicial discretion by setting a firm deadline for
filing an opposition furthers this end. That is a rational legislative
choice and must be applied as written.

2 Louisiana Revised Statutes 1:3 states, “The word ‘shall’ is mandatory and the word

‘may’ is permissive.”

17

The legislative history of Article 966(B) reinforces our
interpretation of its clear wording. The 2015 amendment removed
language that expressly gave the trial court the discretion, upon a
showing of “good cause,” to afford additional time to oppose a motion
for summary judgment. By removing the discretionary language and
replacing it with mandatory language, we must assume the legislature
intended to change the law to eliminate the previously afforded
discretion. “[W]hen the legislature changes the wording of a statute, it
is presumed to have intended a change in the law.” Borel v. Young,
2007-0419 (La. 11/27/07), 989 So.2d 42.

Auricchio v. Harrison, 2020-01167, pp. 4-5 (La. 10/10/21), 332 So.3d 660, 663

(fourth alteration in original). See also Ausbon v. Omni Hotels Mgmt. Corp., 2023-

0589, pp. 4-5 (La. App. 4 Cir. 4/2/24), ___ So.3d ___, 2024 WL 1403280, at *2. In

Auricchio, the Louisiana Supreme Court further explained that “prejudice is

irrelevant” in determining whether to accept a late-filed opposition to a motion for

summary judgment because La. C.C.P. art. 966(B)(2) “mandates compliance

without regard to cause or prejudice.” 2020-01167, p. 5, 332 So.3d at 663.

The Louisiana Supreme Court also explained in Auricchio that in instances

where the party with the untimely opposition also sought a continuance, the trial

court can “consider[] equitable concerns and continue[] the summary judgment

hearing for ‘good cause’ under [La. C.C.P. art.] 966(C)(2)” but that “all discretion

to consider [a] late-filed opposition [is] eliminated” if the trial court denies the

request for a continuance. 2020-01167, p. 5, 332 So.3d at 663. As previously

stated, a summary judgment is to be granted only “[a]fter an opportunity for

adequate discovery.” La. C.C.P. art. 966(A)(3). However, this “does not grant a

party the absolute right to delay a decision on a motion for summary judgment

until all discovery is complete.” Succession of Hickman, 2022-0730, p. 8 (La. App.

4 Cir. 3/15/23), 359 So.3d 584, 591 (citing Francois v. Ports Am. La., L.L.C.,

2020-0440, p. 4 (La. App. 4 Cir. 3/10/21), 314 So.3d 894, 897). See also Ellis v.

18

La. Bd. of Ethics through State, 2017-0385, p. 6 (La. App. 1 Cir. 11/1/17), 233

So.3d 722, 727 (stating that “[t]here is no absolute right to delay action on a

motion for summary judgment until discovery is completed” (citing Vanderbrook

v. Coachmen Indus., Inc., 2001-0809, p. 8 (La. App. 1 Cir. 5/10/02), 818 So.2d

906, 911)).

Thus, if the party seeking a continuance alleges that discovery is incomplete,

the “trial court has the discretion either to hear the summary judgment motion or to

grant a continuance to allow further discovery.” Succession of Hickman, 2022-

0730, p. 7, 359 So.3d at 590 (citing Roadrunner Transp. Sys. v. Brown, 2017-0040,

p. 11 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1272). Within that “procedural

context, a trial court’s choice to hear a motion for summary judgment or to grant a

continuance is reviewed under an abuse of discretion standard.” Id. (citing

Roadrunner Transp. Sys., 2017-0040, p. 11, 219 So.3d at 1272-73). This Court has

listed certain factors to consider when ruling on a claim of inadequate discovery:

(1) if the party seeking the continuance based on inadequate discovery was ready

to go to trial; (2) if that party indicated what additional discovery was needed; (3)

if that party took any steps to conduct additional discovery during the period

between the filing of the motion and the hearing on it; (4) if the party raised the

discovery issue in the trial court prior to the entry of the summary judgment; and

(5) if circumstances beyond the party’s control hindered discovery. Id. at p. 8, 359

So.3d at 591 (citing Roadrunner Transp. Sys., 2017-0040, pp. 11-13, 219 So.3d at

1273-74).

Additionally, in determining whether to grant a continuance of a summary

judgment hearing on the basis of inadequate discovery, a court should consider

whether the party seeking the continuance filed an affidavit showing why it could

19

not justify its opposition as required by La. C.C.P. art. 967. Ellis, 2017-0385, p. 6,

233 So.3d at 727 (citing Vanderbrook, 2001-0809, p. 8, 818 So.2d at 911).

Louisiana Code of Civil Procedure Article 967(C) provides:

C. If it appears from the affidavits of a party opposing the
motion that for reasons stated he cannot present by affidavit facts
essential to justify his opposition, the court may refuse the application
for judgment or may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had or may
make such other order as is just.

That is, “[t]he mere claim by an opponent to a motion for summary judgment that

he does not have in his possession the facts and information necessary to counter

such a motion will not defeat a summary judgment motion.” Vanderbrook, 2001-

0809, p. 8, 818 So.2d at 911 (first citing La. C.C.P. art. 967; and then citing

Waddell v. Bickham, 431 So.2d 59, 61 (La. App. 1st Cir. 1983)). If the party

seeking the continuance failed to comply with the provisions of La. C.C.P. art.

967(C) and did not file such an affidavit then this weighs against finding an abuse

of the trial court’s discretion. See Ellis, 2017-0385, p. 7, 233 So.3d at 727.

Even in instances where the trial court continues a motion for summary

judgment hearing, that decision must be on the basis of good cause so as to provide

the opponent with additional time to file its opposition. That is, if the hearing is

continued for some other reason unrelated to good cause, then this does not allow a

party additional time to file its opposition to the motion for summary judgment.

For example in Ulfers Development, LLC v. A & C Holdings, LLC, the trial court

decided to leave open the hearing on a motion for summary judgment “to address

two discrete issues at a later date,” and the Louisiana Fifth Circuit Court of Appeal

concluded that this decision “did not constitute a ‘good cause’ continuance for the

purposes of giving defendants additional time to file their original opposition

20

materials.” 2022-268, pp. 7-88 (La. App. 5 Cir. 3/29/23), 360 So.3d 105, 110-11.

As in Ulfers, in the matter sub judice, the trial court continued the hearing on

Bankers’ Motion for Summary Judgment but did so on the basis of a court

scheduling conflict, not as a grant of EMIII’s request for a continuance. Thus, the

trial court’s postponement of the hearing did not constitute a good cause

continuance by which EMIII received additional time to file its Opposition.

Accordingly, we must determine whether the trial court abused its discretion

in refusing to grant EMIII’s request for a continuance on the alleged basis of

inadequate discovery. To do so, we apply the five above-listed factors that a court

should consider when ruling on a request for a continuance on the basis of

inadequate discovery. First, the record does not reflect whether EMIII was ready

for trial; but, of note, the case had not been set for trial when Bankers motioned for

summary judgment nor had any discovery deadlines been set. See Succession of

Hickman, 2022-0730, p. 9, 359 So.3d at 591 (finding it unlikely that either party

was ready for trial because the case had not been set for trial nor had any discovery

deadlines been set at the time of the filing of the motion for summary judgment).

Second, EMIII did not indicate in its Opposition what additional discovery it

needed. Even in its brief to this Court EMIII has not specified what other discovery

it would have needed to adequately oppose Bankers’ Motion for Summary

Judgment. Third, EMIII did not take any steps to conduct additional discovery

during the period between Bankers filing its Motion for Summary Judgment and

the hearing on it. Fourth, EMIII did raise the discovery issue in the trial court prior

to the entry of the summary, specifically ten days before the hearing on Bankers’

Motion for Summary Judgment was originally scheduled to occur. Fifth, EMIII

contends that the CMO restricted it from conducting discovery. EMIII is correct

21

that the CMO limited discovery by stating: “IT IS FURTHER ORDERED that all

other discovery is stayed until certification of the completion of the SSP.”

However, the CMO further stated that “the Special Master may authorize limited

formal discovery during the SSP in extraordinary circumstances” and that “[t]he

parties are encouraged to make requests for limited discovery in complex cases

when necessary to effectively participate in the SSP outlined herein.” Thus, the

CMO did not entirely restrict discovery; and, in requesting a continuance of the

summary judgment hearing, EMIII neither alleged nor provided proof that it

sought authorization for discovery from the Special Master and was denied same at

any point in time, let alone after Bankers filed its Motion for Summary Judgment.

Moreover, as Bankers points out in its appellee brief, its Motion for Summary

Judgment was based, in pertinent part, on EMIII’s lack of cooperation with its pre-

suit investigation as consistent with the terms of the insurance policy. That is,

EMIII’s alleged lack of cooperation occurred prior to suit even being filed on May

20, 2022; and the CMO did not limit discovery until a lawsuit was filed thereby

bringing a disputed claim under the purview of the CMO, such that the CMO

cannot not serve as a basis to justify EMIII’s non-compliance with the pre-suit

investigation. The discovery restrictions of the CMO are irrelevant to resolution of

whether EMIII did or did not cooperate. In light of the foregoing, we find that the

five factors weigh in favor of finding that the trial court did not abuse its discretion

in denying EMIII’s request for a continuance.

Of further note, EMIII did not file an affidavit in compliance with La. C.C.P.

art. 967(C) showing why it could not justify its opposition as required by La.

C.C.P. art. 967. This serves as further justification for our finding of no abuse of

discretion on the part of the trial court in refusing to grant EMIII’s request for a

22

continuance on the basis of inadequate discovery. While one might argue that there

was no prejudice to Bankers stemming from the untimely opposition because the

hearing on its Motion for Summary Judgment was ultimately held over two months

after EMIII filed its Opposition, as the Louisiana Supreme Court stated in

Auricchio, “prejudice is irrelevant” in determining whether to accept a late-filed

opposition to a motion for summary judgment because La. C.C.P. art. 966(B)(2)

“mandates compliance without regard to cause or prejudice.” 2020-01167, p. 5,

332 So.3d at 663. Thus, the trial court was correct in refusing to consider EMIII’s

late-filed Opposition and the documents attached thereto; and we likewise we

refuse to consider EMIII’s untimely Opposition and supporting documents.

Whether Bankers Met Its Initial Burden of Proving it Was Entitled to
Summary Judgment – Non-Compliance Issue

Even without EMIII’s Opposition to Bankers’ Motion for Summary

Judgment, Bankers had the burden of establishing that there were no genuine

issues of material fact and that it was entitled to summary judgment as a matter of

law. See Ulfers, 2022-268, p. 8, 360 So.3d at 111 (first citing La. C.C.P. art.

966(D)(1); and then citing Freeman v. Ochsner Clinic Found., 2021-401, p. 5 (La.

App. 5 Cir. 2/23/22), 362 So.3d 720, 724). That is, “[t]he failure to file an

opposition does not automatically require that the motion for summary judgment

be granted, as the initial burden of proof is on the mover.” Auricchio, 2020-01167,

p. 5, 663 n.2 (first citing Crockerham v. La. Med. Mut. Ins. Co., 2017-1590, p. 5

(La. App. 1 Cir. 6/21/18), 255 So.3d 604, 608; and then citing La. C.C.P. art.

966(B)(1)). Therefore, we next turn our discussion to determining whether Bankers

proved that it was entitled to summary judgment as a matter of law. As Bankers

suggests doing in its brief to this Court, we review EMIII’s assignments of error

23

out of order by beginning with its third assignment of error and Bankers’ argument

that EMIII’s non-compliance with its investigation voided the insurance policy.

The issue in this appeal of a summary judgment is whether there is a genuine

issue of material fact as to insurance coverage. “Interpretation of an insurance

policy ordinarily involves a legal question that can be properly resolved by a

motion for summary judgment.” United Home Care, Inc. v. Simpson, 54,797, p. 5

(La. App. 2 Cir. 11/16/22), 351 So.3d 904, 908 (first citing Landry v. Progressive

Sec. Ins. Co., 2021-00621, p. 6 (La. 1/28/22), 347 So.3d 712, 716; and then citing

Bilyeu v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 50,049, p. 8 (La. App. 2 Cir.

9/30/15), 184 So.3d 69, 74). As this Court has explained, “[t]he purpose of the

cooperation clause” in an insurance policy “is to require the insured to disclose all

of the facts within his [or her] knowledge, and otherwise aid the company to

determine its liability under the policy.” Trosclair v. CNA Ins. Co., 1993-1741 (La.

App. 4 Cir. 5/17/94), 637 So.2d 1168, 1170 (quoting Freyou v. Marquette Cas.

Co., 149 So.2d 697, 702 (La. App. 3d Cir. 1963)). As the Louisiana First Circuit

Court of Appeal has described it, “[a] cooperation clause protects the insurer

against fraud by enabling it to obtain relevant information concerning the claimed

loss while the information is fresh.” McCartney v. Shelter Mut. Ins. Co., 2017-

1398, p. 4 (La. App. 1 Cir. 7/10/18), 255 So.3d 1060, 1062 (citing Johnson v.

Geovera Spec. Ins. Co., 657 Fed. Appx. 301, 304 (5th Cir. 2016)). Louisiana courts

have held that violation of a cooperation clause, including the failure to submit to

an examination under oath or the refusal to produce documentation, constitutes a

material breach of an insurance contract and a defense to a suit on the policy. Id.

(first citing Lee, 607 So.2d at 688; and then citing Hamilton v. State Farm Fire &

Cas. Ins. Co., 477 Fed. Appx. 162, 165 (5th Cir. 2012)). In so holding, however,

24

the courts should be mindful that “a cooperation clause is not an escape hatch for

the insurer to flee liability for trivial policy violations, and dismissing a suit for

breach of a cooperation clause is a draconian remedy.” Id. at p. 5, 255 So.3d at

1062 (first citing Beasley v. GeoVera Specialty Ins. Co., No. 2013-395, 2015 WL

2372328, at *3 (E.D. La. May 15, 2015); then citing Jackson v. State Farm Fire &

Cas. Co., No. 2006-7202, 2010 WL 724108, at *8 (E.D. La. Feb. 22, 2010); and

then citing Lee, 607 So.2d at 685). Accordingly, for a policy to be deemed void on

the basis of non-compliance with a cooperation clause, the insurer must

demonstrate that it made “a diligent effort to obtain the requested information,”

and the insurer bears the burden of proving that the breach of the cooperation

clause was “both material and prejudicial.” Id. (citations omitted). See also

Williams v. Lowe, 2002-355, 356, p. 5 (La. App. 5 Cir. 10/16/02), 831 So.2d 334,

336 (citing Desadier v. Safeway Ins. Co., 1997-1412, p. 5 (La. App. 3 Cir. 4/8/98),

712 So.2d 925, 928). Thus, when an insurance company asserts a denial of

coverage based on the insured’s refusal to cooperate, a central question for the

courts to consider is whether there was prejudice to the insurer. Trosclair, 1993-

1741, 637 So.2d at 1170. If the insurer argues general prejudice but does not show

how it was prejudiced or any particular prejudice, then the insurer has not met its

burden of proof. Id., 637 So.2d at 1170-71.

For example, in Trosclair, this Court reversed the trial court’s grant of

summary judgment in favor of the insurer, Transportation, stating that while

Transportation had “argued general prejudice,” it had “not shown how it [was]

prejudiced, nor . . . any particular prejudice.” 637 So.2d at 1170. Similarly, in

McCartney, the Louisiana First Circuit Court of Appeal (“First Circuit”), reversed

the trial court’s grant of summary judgment in favor of the insurer, Shelter,

25

partially on the basis of the prejudice issue. 2017-1398, p. 7, 255 So.3d at 1064. In

support of its motion for summary judgment, Shelter attached the affidavit of

Sonya White (“Ms. White”), who was the claims representative tasked with

investigating the claim of the insureds, the McCartneys. Id. at p. 5, 255 So.3d at

1063. In her affidavit, Ms. White attested that “the McCartneys ‘failed to provide

the information requested and failed to give an examination under oath.’” Id. at p.

6, 255 So.3d at 1063. She further attested that “[t]he ability to investigate and

investigate early is critical,” and that the “the inability to do so substantially

prejudiced Shelter’s investigation into the McCartneys’ claim.” Id. The First

Circuit concluded this was insufficient, noting that “the record contains no

evidence suggesting Shelter was prejudiced by any action or inaction by the

McCartneys.” Id. at p. 7, 255 So.3d at 1064.

Additionally, “[w]hether an insured breached the duty of cooperation is a

factual inquiry.” McCartney, 2017-1398, p. 5, 255 So.3d at 1063 (citing Breaux v.

Cozy Cottages, LLC, 2014-486 (La. App. 3 Cir. 11/12/14), 151 So.3d 183, 190).3

Louisiana “[c]ourts have allowed an insured to avoid dismissal upon finding the

insured had a reasonable explanation for his actions.” McCartney, 2017-1398, p. 5,

255 So.3d at 1063 (first citing Beasley, 2015 WL 2372328, at *4; and then citing

Freyou, 149 So.2d at 700). Thus, the evidence to support coverage being voided

should also establish why the insured failed to correspond and cooperate with the

insurance company. See Williams, 2002-355, p. 7, 831 So.2d at 337. For example,

in Brantley v. State Farm Ins. Co., the Louisiana Second Circuit Court of Appeal

(“Second Circuit”) noted that while the insurer, State Farm, sent its letters

3 We note for purposes of this citation that on Westlaw the Breaux opinion provides the

docket number as “2014-486” in two places and “14-597” in another spot. It is unclear which
docket number is correct.

26

requesting cooperation from the insureds via certified mail, the record contained no

return receipts to show that the insureds actually received the letters, and the

insureds denied having received written communications from their insurer

regarding the investigation. 35,148, p. 12 (La. App. 2 Cir. 10/31/01), 799 So.2d

638, 644. In part, on the basis that the evidence on the insureds’ failure to

cooperate was conflicting, the Louisiana Second Circuit Court of Appeal reversed

the trial court’s grant of summary judgment in favor of State Farm. Id. at p. 14, 799

So.2d at 645.

Bankers cited to Lee in its Motion for Summary Judgment and its brief to

this Court as support for voiding coverage in this matter, so we find it helpful to

this analysis to summarize that case. In Lee, this Court acknowledged that denial of

coverage on the basis of non-compliance “is a draconian remedy which [the Court]

do[es] not ordinarily favor,” but then provided a detailed chronology of events to

demonstrate support for the result in that case. 607 So.2d at 685-86. The

chronology included not only the insurer’s numerous attempts to obtain a sworn

statement and information from the insureds, but also multiple attempts by the trial

court to secure same. Id. Before dismissing the insureds’ case, the trial court even

gave them two final opportunities to comply and warned them that the court was

“almost at that point” of dismissal and that they would “face the possibility of

dismissal with prejudice” for continued non-compliance. Id., 607 So.2d at 686. In

affirming the trial court’s ultimate dismissal of the insureds’ suit, this court

concluded its opinion by saying, “If a trial court may not dismiss a case with

prejudice under circumstances involving as much prolonged wilfulness and bad

faith as exist in this case, then discovery rules and insurance policy provisions are

meaningless.” Id., 607 So.2d at 688-89.

27

In the matter sub judice, Bankers’ Motion for Summary Judgment alleged

that EMIII’s failure to cooperate with the investigation of the claim, including its

failure to provide the requested information, its failure to provide requested

documents, and its failure to participate in an examination under oath, “materially

prejudiced Bankers’ investigation of the claim.” Bankers provided no further

information in its Motion for Summary Judgment nor in any exhibits attached

thereto as to how it was prejudiced or what particular prejudice it experienced as a

result of EMIII’s alleged non-compliance. Rather, Bankers’ Motion for Summary

Judgment merely argues general prejudice as in Trosclair and McCartney. As in

those cases, we find that this general allegation of prejudice was insufficient to

grant summary judgment in Bankers’ favor and thereby impose such “a draconian

remedy” on EMIII (i.e., voiding its insurance coverage) for its alleged non-

cooperation.

Despite Bankers’ citation to Lee in support of the grant of summary

judgment in this matter, we find Lee so distinguishable factually and procedurally

from the matter sub judice that it cannot and should not serve a basis to affirm the

trial court’s grant of Bankers’ Motion for Summary Judgment. Even though

Bankers submitted its emails and written correspondence as proof of EMIII’s non-

compliance, unlike in Lee, EMIII has not also ignored court orders to comply.

Moreover, as in Brantley, although Bankers sent its letters requesting cooperation

from EMIII via certified mail, the record contains no return receipts to show that

EMIII actually received the letters. There is also no proof EMIII received the

emails from Bankers. Both the written correspondence and the emails were

addressed to EMIII’s counsel, so it is unclear whether EMIII itself actually knew

about the requests. This indicates that there remains a question of fact about

28

whether EMIII had a reasonable explanation for its actions. In sum, we conclude

that there is a genuine issue of material fact regarding EMIII’s alleged non-

compliance clause with the insurance contract and as to whether Bankers was

prejudiced by EMIII’s alleged non-compliance.

Whether Bankers Met Its Initial Burden of Proving it Was Entitled to
Summary Judgment – Occupancy

In EMIII’s first two assignments of error, EMIII argues that the trial court

erred in ruling that the occupancy of 2314 and 2316 Rev. John Raphael Jr. Way

breached the contract and annulled the contract of insurance for 2324 Rev. John

Raphael Jr. Way. As Bankers observes in its brief, the trial court’s oral reasons for

ruling at the January 26, 2024 hearing demonstrate that the trial court did not grant

Bankers’ Motion for Summary Judgment on this basis. Bankers contends that, for

that reason, the occupancy issue and assignments of errors numbers one and two

are “irrelevant to this [a]ppeal” and that any argument regarding same “should be

disregarded.” Bankers makes no further argument about these assignments of error

and the occupancy issue.

Nonetheless, we choose to address this issue. Bankers contended that its

evidentiary support for its argument that EMIII violated the occupancy clause of

the insurance contract was a December 2021 recorded statement by EMIII and the

residential leases for 2314 and 2316 Rev. John Raphael Jr. Way. These documents

are not in the record on appeal. As previously held, “[t]his Court is a court of

record and can only review what is contained in the record” on appeal. PRCP-NS

New Orleans, LLC v. Swanson, 2022-0393, p. 17 (La. App. 4 Cir. 12/16/22), 354

So.3d 239, 249 (citations omitted). See also Anderson v. Briggs, 2024-0232, p. 7

(La. App. 4 Cir. 9/20/24), 2024 WL 4284343, at *3 (quoting JoAnn Place v.

29

Ricard, 2022-0456, p. 12 (La. App. 4 Cir. 12/27/22), 356 So.3d 518, 527). Even if

they were, as the trial court explained, they would not satisfy Bankers’ burden of

proof on this issue. The existence of the leases and their purported dates of

execution indicate that there was a lease in place in advance of the issuance of the

insurance policy—they do not establish that the leases were still in effect and that

people were occupying 2314 and 2316 Rev. John Raphael Jr. Way at the time of

Hurricane Ida in August 2021. Moreover, regarding EMIII’s recorded statement,

Bankers admitted at the summary judgment hearing that it did not attach to its

Motion for Summary Judgment an affidavit indicating the existence of the

recorded statement, so the trial court correctly excluded that as a basis for granting

summary judgment on the occupancy issue. See Harris v. Dunn, 45,619, p. 4 (La.

App. 2 Cir. 9/22/10), 48 So.3d 367, 371 (explaining that a recorded statement is

not competent summary judgment evidence). The appellate record contains the

independent adjuster’s report; but even that document does not resolve the

occupancy question because it does not definitively establish that any of the units

were occupied at the time of loss, i.e., Hurricane Ida, or that occupancy of certain

units voided coverage for 2324 Reverend John Raphael Jr. Way. Accordingly, we

conclude that there remains a genuine issue of material fact regarding the

occupancy issue too, so the trial court correctly denied Bankers’ Motion for

Summary Judgment on this basis.

DECREE

For the foregoing reasons, we reverse the trial court’s February 12, 2024

judgment, which granted the Motion for Summary Judgment filed by Bankers;

dismissed with prejudice all of the claims asserted in reconvention against Bankers

30

by EMIII; and dismissed as moot Bankers’ Complaint. We remand this matter for

further proceedings.

REVERSED AND REMANDED

31