Thomas Riggio v. Ports America Louisiana, L.L.C., Andre Bridges, Board of Commissioners of the Port of New Orleans, and Abc Insurance Company

THOMAS RIGGIO * NO. 2024-CA-0436

VERSUS *
COURT OF APPEAL
PORTS AMERICA *
LOUISIANA, L.L.C., ANDRE FOURTH CIRCUIT
BRIDGES, BOARD OF *
COMMISSIONERS OF THE STATE OF LOUISIANA
PORT OF NEW ORLEANS, *******
AND ABC INSURANCE
COMPANY

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-08935, DIVISION “B-11”
Honorable Marissa Hutabarat, Judge
******
Judge Rosemary Ledet
******
(Court composed of Chief Judge Terri F. Love, Judge Rosemary Ledet, Judge
Nakisha Ervin-Knott)

Kirk N. Aurandt
Michael W. McMahon
DAIGLE FISSE & KESSENICH, PLC
P.O. Box 5350
Covington, LA 70434-5350

Gillis W.P. Klotz
FRILOT, LLC
1100 Poydras Street, Suite 3700

New Orleans, LA 70163

COUNSEL FOR THIRD-PARTY PLAINTIFF/APPELLANT

Robert I. Siegel
Elizabeth B. Carville
GIEGER, LABORDE & LAPEROUSE, LLC
701 Poydras Street, Suite 4800
New Orleans, Louisiana 70139-4800

Daniel J. Caruso
Charles E. Riley, IV
Alexandra E. Celio
SIMON PERAGINE SMITH & REDFEARN, LLP
1100 Poydras Street, 30th Floor
New Orleans, Louisiana 70163

COUNCIL FOR THIRD-PARTY DEFENDANTS/APPELLEES

AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED
December 5, 2024

RML This a personal injury suit arising out of a motor vehicular collision. Third-

TFL party plaintiff—Ports America Louisiana, L.L.C. (“Ports”)—appeals from the trial

NEK court’s decision granting the two summary judgment motions filed by three third-

party defendants—STG Logistics, Inc. (“STG”), formerly known as XPO Logistics

Drayage, LLD (“XPO”); Safeco Insurance Company of America (“Safeco”); and

ACE American Insurance Company (“ACE”) (collectively “Third-Party

Defendants”).1 For the reasons that follow, we affirm the judgment granting ACE’s

1 STG and Safeco filed a joint summary judgment motion; ACE filed a separate summary

judgment motion.
1

motion, reverse the judgment granting STG and Safeco’s joint motion, and

remand.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying vehicular collision giving rise to this suit occurred on

property owned by the Board of Commissioners of the Port of New Orleans (the

“Board”), and leased and operated by Ports. Thomas Riggio (“Mr. Riggio”) was

the driver of one of the vehicles—a tractor-trailer owned by Mr. Riggio and leased

to STG. Andre Bridges, Ports’ employee, was the driver of the other vehicle—a

Ports’ yard truck.

Mr. Riggio filed this personal injury suit against Mr. Bridges, Ports, and the

Board. In his petition, Mr. Riggio averred:

• On or about December 13, 2019, [Mr. Riggio] was working as a truck
driver while operating a tractor-trailer for XPO Logistics [now STG].

• [Mr. Riggio] arrived at [Ports’] Nashville’s terminal, located at 5901
Terminal Drive in New Orleans, Louisiana and parked his tractor-trailer
to be loaded.

• At the same time, a [Ports’] unregistered yard truck . . . operated by a[n]
employee, [Mr. Bridges,] attempted to make a right turn and go around
the parked tractor-trailer operated by [Mr. Riggio], when suddenly the
passenger side of chassis being towed by the vehicle operated by [Mr.

2

Bridges], struck the rear driver’s side of the chassis of the vehicle
operated by [Mr. Riggio].

In response, Ports filed demands for defense, indemnification, and insurance

coverage against both Mr. Riggio and Third-Party Defendants—STG, Safeco,2 and

ACE. The basis for these demands was the Tariff for Facilities in the Port of New

Orleans (the “Tariff”). In the demands, Ports averred that the Tariff imposed

certain terms on “users” of its facilities and that both Mr. Riggio and STG were

“users.” Ports cited two provisions of the Tariff—Section II-200, “Consent to the

Tariff”;3 and Section II-210, “Minimum Insurance Requirements.”4 Another

2 The record on appeal does not include any explanation of Safeco’s role in this matter other than

an allegation in Ports’ third-party demand that Safeco issued a policy of insurance to STG and an
argument at the summary judgment hearing that Safeco denied coverage to Ports. A copy of
Safeco’s policy is not contained in the record on appeal.
3 Section II-200 of the Tariff provides:

This tariff applies by force of law to all users of the Ports America Properties and
Facilities. Use of the wharves, Properties and Facilities under the jurisdiction of
Ports America Louisiana, LLC . . . shall constitute a consent to the terms and
conditions of this tariff and evidences an agreement on the part of all vessels, their
owners . . . or other users to pay all applicable charges and abide by all rules and
regulations of PORTS AMERICA, and abide by the rules and regulations of this
tariff.
4 Section II-210 of the Tariff provides:

Grantees of Berth and outside operators functioning as set forth in this tariff shall
be responsible for furnishing to PORTS AMERICA evidence of insurance
coverage, including but not limited to Workers' Compensation, Automobile
Liability, with limits of $500,000,00, Stevedore and Terminal Operator's Liability
3

pertinent provision of the Tariff, which Ports failed to cite, is Section II-216, “Ports

America Held Harmless.”5

with limits of $500,000.00, all with deductible amounts acceptable to PORTS
AMERICA and such other insurance, in such form and with minimum limits as
PORTS AMERICA may require, depending on the type of work being performed.
All insurance policies shall be issued by underwriters with an A.M. Best senior
credit rating of “A” or better, with terms and conditions reasonably acceptable to
PORTS AMERICA, with PORTS AMERICA as a named insured, with waiver of
subrogation as to PORTS AMERICA.

Failure to obtain and retain or submit evidence of the insurance coverage's required
by PORTS AMERICA shall constitute cause for denying the use of PORTS
AMERICA facilities or immediate cancellation of use of facilities. This evidence
shall be in the form of a current, valid certificate of insurance Failure to obtain and
retain or submit evidence of the insurance coverage’s required by PORTS
AMERICA shall constitute cause for denying the use of PORTS AMERICA
facilities or immediate cancellation of use of facilities. This evidence shall be in the
form of a current, valid certificate of insurance. (See item 216 which also applies).
5 Section II-216 of the Tariff provides:

Each . . . service provider to whom PORTS AMERICA and/or Board property has
been assigned or allowed use of, or who are using or occupying same under any
provision of this tariff, shall be responsible for and shall be liable for, severally,
jointly and in solido, or in instances of outside operators functioning as set forth in
this tariff shall be responsible for and take over and administer, any and all claims
in any manner arising out of or connected with the performance of
loading/unloading services by such User of the Berth, or in instances of outside
operators functioning as set forth in this tariff, including, but not limited to, any and
all claims for bodily injury, death, property (including cargo) damage, loss or
shortage and/or for detention, demurrage or delay and shall defend, indemnify and
hold harmless PORTS AMERICA and its officers, directors, employees and agents
from and against any such claims, provided, however, that this provision will not
relieve PORTS AMERICA from any liability which may arise out of its own
negligence.
4

Following discovery, a trio of summary judgment motions were filed—Mr.

Riggio filed one; ACE filed one; and STG and Safeco jointly filed one. Following

a hearing, the trial court denied Mr. Riggio’s motion, but granted Third-Party

Defendants’ two motions. This appeal by Ports followed.6

DISCUSSION

Although Ports assigns multiple errors,7 the gist of its arguments is

that the trial court erred in granting third-party defendants’ two summary

judgment motions.

6 This appeal does not include the denial of Mr. Riggio’s summary judgment motion. Mr. Riggio

is not a party to this appeal.
7 Ports’ three assigned errors are as follows:

1. In granting summary judgment in favor of Third-Party Defendants-Appellees,
STG Logistics, Inc., f/n/a XPO Logistics Drayage, LLC (individually “STG”)
and Safeco Insurance Company of America (individually “Safeco”), the district
court erred by holding that Defendant and Third-Party Plaintiff-Appellant, Ports
America Louisiana, L.L.C. (“Ports America”), was required to produce
evidence of the fault of STG or of STG’s employees in order to have a valid
claim for defense, indemnity, and insurance coverage against STG under Ports
America’s Tariff (the “Tariff”) because the ruling failed to consider the
circumstance where the claims of Plaintiff, Thomas Riggio, against Ports
America are ultimately found to be without merit, and because the Tariff
contains no such fault requirement on the part of the indemnitor.

2. The district court erred in granting summary judgment to STG and in dismissing
Ports America’s Third-Party Demand against STG for defense, indemnity, and
insurance coverage because if, as the district court found, STG’s insurance did
not provide coverage to Ports America, then STG, as a user of Ports America’s
5

Summary judgment principles and standard of review

This Court recently outlined the relevant summary judgment principles and

standard of review were recently outlined by this Court in Singleton v. Dillard

Univ., 23-0295 (La. App. 4 Cir. 10/27/23), 376 So.3d 997, as follows:

• According to established jurisprudence, an appellate court reviews a
trial court's ruling on a summary judgment motion by applying a de
novo standard.

• To decide whether summary judgment is appropriate, an appellate court
uses the same standards and rules as a trial court—whether there is any
genuine issue of material fact, and whether the movant is entitled to
judgment as a matter of law.

• The summary judgment procedure is codified in La. C.C.P. art.
966(A)(3), which provides that “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.”

• A genuine issue of fact is one as to which reasonable persons could
disagree; if reasonable persons could reach only one conclusion, there
is no need for trial on the issue, and the granting of summary judgment
is appropriate.

facilities, necessarily breached its obligations under the Tariff to furnish
insurance coverage to Ports America as a “named insured,” and STG is liable
to Ports America for that breach.

3. The district court erred in granting summary judgment in favor of Third-Party
Defendant-Appellee, ACE American Insurance Company (“ACE”), because
there is a genuine issue of material fact regarding whether Ports America is a
named insured under the ACE policy.

6

• A material fact is one that might affect the outcome of the suit. Whether
a fact is material must be determined based on the applicable
substantive law.

• The summary judgment procedure is favored in Louisiana state courts
and shall be construed to “secure the just, speedy, and inexpensive
determination of every action, except those disallowed by Article 969.”
La. C.C.P. art. 966(A)(2).

• Nonetheless, Louisiana jurisprudence has recognized that any doubt as
to a dispute regarding a material issue of fact must be resolved against
granting the motion and in favor of a trial on the merits.

Singleton, 23-0295, pp. 5-6, 376 So.3d at 1000-01 (internal quotations and

citations omitted and reformatted).

Here, the applicable substantive law, which determines materiality for

summary judgment motion purposes, is three-fold—statutory, indemnity, and

insurance law.

1. Statutory Law—STG, Safeco, and ACE

Third-Party Defendants—STG, Safeco, and ACE—argue, in support of their

respective summary judgment motions, that the Tariff is a “motor vehicle

transportation contract” covered by the Louisiana’s Anti-Indemnification Act

7

(“LAIA”), La. R.S. 9:2780.1.8 Continuing, they contend that Ports, under the

Tariff, is demanding defense, indemnification, and insurance coverage for its own

8 In 2010, the Louisiana Legislature enacted the LAIA, which governs indemnification clauses in

certain defined “motor carrier transportation” and “construction” contracts; a “motor carrier
transportation contract” is defined in La. R.S. 9:2780.1(A)(1) as follows:

[A]ny contract, agreement, or understanding covering the transportation of
property, other than agricultural products as defined in R.S. 9:3306 and timber
without limitation, for compensation or hire by a motor carrier, entrance upon
property by the motor carrier for the purpose of loading, unloading, or transporting
property, other than agricultural products as defined in R.S. 9:3306 and timber
without limitation, for compensation or hire, or a service incidental to any such
activity, including but not limited to storage of property, other than agricultural
products as defined in R.S. 9:3306 and timber without limitation, except the
Uniform Intermodal Interchange and Facilities Access Agreement administered by
the Intermodal Association of North America or other agreements providing for the
interchange, use, or possession of intermodal chassis, containers, or other
intermodal equipment.

The LAIA further provides:

La. R.S. 9:2780.1(B) provides:

Notwithstanding any provision of law to the contrary and except as
otherwise provided in this Section, any provision, clause, covenant, or agreement
contained in, collateral to, or affecting a motor carrier transportation contract or
construction contract which purports to indemnify, defend, or hold harmless, or has
the effect of indemnifying, defending, or holding harmless, the indemnitee from or
against any liability for loss or damage resulting from the negligence or intentional
acts or omissions of the indemnitee, an agent or employee of the indemnitee, or a
third party over which the indemnitor has no control is contrary to the public policy
of this state and is null, void, and unenforceable.

La. R.S. 9:2780.1(C) provides:

8

fault, which the LAIA prohibits. For this reason, they contend that the Tariff

provisions at issue here are unlawful and unenforceable. Moreover, STG and

Safeco point out that Section II-216 of the Tariff, entitled “Ports America Held

Harmless,”9 applies here. Section II-216 states that “this provision will not relieve

[Ports] from any liability which may arise out of its negligence.”

Ports counters that the LAIA is inapposite because the Tariff is not a “motor

vehicle transportation agreement.” Rather, it contends that the Tariff falls within

Notwithstanding any provision of law to the contrary and except as
otherwise provided in this Section, any provision, clause, covenant, or agreement
contained in, collateral to, or affecting a motor carrier transportation contract or
construction contract which purports to require an indemnitor to procure liability
insurance covering the acts or omissions or both of the indemnitee, its employees
or agents, or the acts or omissions of a third party over whom the indemnitor has
no control is null, void, and unenforceable. However, nothing in this Section shall
be construed to prevent the indemnitee from requiring the indemnitor to provide
proof of insurance for obligations covered by the contract.

La. R.S. 9:2780.1(D) provides:

Notwithstanding any contractual provision to the contrary, the Section shall
apply to and govern any construction contract to be performed in this state and any
motor carrier transportation contract relative to loading or unloading activities, or
any services incidental thereto, which occur in this state. Any provision, covenant,
or clause in such contracts which conflicts with the provisions of this Section shall
be null, void, and unenforceable.
9 This provision, quoted elsewhere in this opinion, is cross-referenced by Section 210 of the

Tariff entitled “Minimum Insurance Requirements.”

9

the exclusion from that term for “other agreements providing for the interchange,

use, or possession of intermodal chassis, containers, or other intermodal

equipment.” La. R.S. 9:2780.1(A).

The trial court, in its written reasons for judgment, found that because the

Tariff does not seek to indemnify Ports for the consequences of its own negligence,

the Tariff does not violate the LAIA. In so finding, the trial court cited Section II-

216 of the Tariff. On appeal, Ports does not dispute the trial court’s finding that the

Tariff does not violate the LAIA. Thus, we find no further statutory interpretation

of the LAIA is warranted. Rather, resolution of the issues presented on this appeal

requires the interpretation of two types of contractual agreements—an indemnity

agreement: the Tariff; and insurance policies: the two policies that ACE issued to

STG’s predecessor, XPO.

2. Indemnity Law—STG and Safeco

An indemnity agreement is a specialized form of contract. Meloy v. Conoco,

Inc., 504 So.2d 833, 839 (La. 1987) (observing that “[a]n indemnity agreement is a

specialized form of contract which is distinguishable from a liability insurance

policy”). Summarizing indemnity law, the Louisiana Supreme Court, recently in

10

Bennett v. DEMCO Energy Servs., LLC, 23-01358 (La. 5/10/24), 386 So.3d 270,

observed:

• The rule of indemnity is based upon the general obligation to repair the
damage caused by one’s fault under La. C.C. art. 2315.

• An indemnity agreement is a contract wherein a party (the indemnitor)
agrees to protect another (the indemnitee) against damages incurred by
the latter as a result of his breach of a duty owed to a third party. Ronald
J. Scalise, Law of Obligations, 6 LA. CIV. L. TREATISE § 11.27 (2d. ed.
2023).

• Unless there is a special provision of law to the contrary, indemnity
agreements are valid and are not against the public order.

• A claim for indemnity is ordinarily brought through a third party
demand, although can be raised, as in this matter, through a cross-claim
pursuant to La. C.C.P. art. 1071.

Bennett, 23-01358, pp. 3-4, 386 So.3d at 273 (internal case citation omitted and

reformatted). Clarifying the procedural law regarding the timing of filing and

deciding indemnity claims, the Supreme Court in Bennett observed:

[A]sserting a claim for indemnity, arising out of the same facts and
circumstances, is not premature before a judicial finding of liability.
The right to collect on an indemnity agreement is determined upon
judgment or finding of liability or loss, but there is no prohibition on
asserting a claim for indemnity in the same proceeding.

11

23-01358, pp. 8-9, 386 So.3d at 276. The Supreme Court further observed that the

distinction between the right to make a claim for indemnity and the right to collect

indemnity is significant. Id.

In interpreting an indemnity agreement, “[t]he allegations of the plaintiff’s

suit against the indemnitee are irrelevant to the indemnitor’s obligation to pay.

Rather it is the terms of the indemnity agreement which govern the obligations of

the parties.” Meloy, 504 So.2d at 839; see also Klutz v. New Orleans Pub. Facility

Mgmt., Inc., 05-0327, p. 4 (La. App. 4 Cir. 12/21/05), 921 So.2d 1021, 1023

(observing that the language in the indemnity agreement dictates the parties’

obligations).

In granting STG and Safeco’s joint motion, the trial court, in its written

reasons for judgment, observed:

• Section II-216 of the Tariff Agreement is clear in that Ports will be
responsible for its own negligence and/or the negligence of its
employees. Thus, in order to have a valid claim for defense and
indemnification, Ports must produce evidence as to fault on behalf of
STG and/or its employees.

12

• It is undisputed that Plaintiff [Mr. Riggio] was struck by a Ports’ vehicle
operated by Ports’ employee, [Mr.] Bridges, further corroborated by
[Mr.] Bridges’ own deposition testimony.10

• Based on the facts and allegations of the Petition, it is alleged that
bodily injury resulted only from the acts of Ports’ employee within the
course and scope of his employment.

• Ports has failed to submit evidence and factual support through
testimony, affidavits, or expert reports showing any fault other than its
own employee’s negligence.

• Because Ports has failed to meet its burden, and Ports is responsible for
its own fault and the fault of its employees under the Tariff Agreement,
Ports’ claim for defense and indemnification fails.

The trial court’s ruling, which adopts STG and Safeco’s argument,11 is erroneous

in three respects.

First, the jurisprudence has held that the allegations of the petition are

irrelevant in construing an indemnity agreement; rather, an indemnity agreement

10 In support of their joint motion, STG and Safeco attached, among other things, the deposition

testimony of Mr. Bridges and Mr. Riggio. STG and Safeco emphasize that the deposition
testimony supports the allegations in the petition that the collision was caused by Mr. Bridges
and that Mr. Bridges was acting as Ports’ employee when the collision occurred.
11 STG and Safeco’s argument is that because Ports is not owed contractual defense or

indemnification for its own fault, Ports—to defeat STG and Safeco’s supported summary
judgment motion—was required to present competent summary judgment evidence through
testimony, affidavits, or expert reports (opinions) proving the underlying collision happened in
some way other than that described by its own employee, Mr. Bridges, in his deposition. Ports
failed to do so. Absent proof on this essential element of Ports’ claim, STG and Safeco contend
they are entitled to summary judgment.
13

must be construed based upon its wording. Meloy, 504 So.2d at 839. Here, the trial

court, in its reasons for judgment, cited the petition, observing that “[b]ased on the

facts and allegations of the Petition, it is alleged that bodily injury resulted only

from the acts of Ports’ employee within the course and scope of his employment.”

Reliance on the allegations of the petition in construing an indemnification

agreement is misplaced. The language of the indemnification agreement—here, the

Tariff—is controlling.

Second, the trial court’s ruling presupposes that an essential element of

Ports’ claim for indemnification is proof of fault on the indemnitor’s (here, STG’s)

part. But, as Ports contends, the Tariff does not contain such a requirement; rather,

the Tariff simply states that there is no indemnity for the indemnitee’s (here,

Ports’) own negligence. The Tariff’s terms, as Ports points out, are distinguishable

from the terms of the indemnity agreement at issue in Palmer v. General Health,

Inc., 552 So.2d 750, 756 (La. App. 1st Cir. 1989).

In Palmer, the contractual indemnity agreement limited indemnity to when

the claim was caused by the fault or neglect of the indemnitor. Here, the Tariff

contains no such requirement of fault or neglect on the part of the indemnitor—

here, STG—before an obligation to indemnify is triggered. See also Treme v.

14

American Mut. Liab. Ins. Co., 260 So.2d 41, 44 (La. App. 3d Cir. 1972) (rejecting

indemnitor’s argument that the contractual indemnity clause in question

“presupposes the existence of fault on the part of the [indemnitor]” because “the

written agreement does not require a finding of fault on the part of the [indemnitor]

as a prerequisite to indemnification”). Again, the Tariff contains no requirement

that the indemnitor (here, STG) be at fault before the indemnity obligations are

triggered.

Third, no judicial determination of Ports’ fault, if any, for the underlying tort

claim has been made; a trial on Mr. Riggio’s underlying tort claim has not yet been

held.12 Although it was not premature for Ports to file its third-party demands

before such a judicial determination was made, it was premature for the trial court

to rule on those demands. See Bennett, 23-01358, pp. 8-9, 386 So.3d at 276.

Accordingly, we reverse the trial court’s decision granting STG and Safeco’s joint

summary judgment motion.13

12 The trial of the underlying matter has been stayed pending the outcome of this appeal.

13 Ports also contends that the trial court erred in granting summary judgment to STG and in

dismissing Ports’ claims against STG because if, as the trial court found, the ACE policies
procured by STG did not provide insurance coverage to Ports, then STG breached its obligation
to Ports under the Tariff to furnish insurance coverage with Ports as a named insured. And, STG
would be liable to Ports for that breach. Given our reversal for other reasons of the summary
judgment in STG’s favor, we pretermit this issue.
15

3. Insurance Law—ACE

“Whether an insurance policy provides for, or precludes, coverage as a

matter of law is an issue that can be resolved within the framework of a motion for

summary judgment.” Certain Underwriters at Lloyd's of London v Duxworth

Roofing and Sheetmetal, Inc., 22-0821, p. 7 (La. App. 4 Cir. 7/18/23), 370 So.3d

1144, 1149 (internal quotations and citation omitted). In analyzing insurance

policies, the following elementary legal principles apply:

• An insurance policy is a contract between the parties and should be
construed by using the general rules of interpretation of contracts set
forth in the Civil Code.

• The parties’ intent as reflected by the words in the policy determine
the extent of coverage. Such intent is to be determined in accordance
with the general, ordinary, plain and popular meaning of the words used
in the policy, unless the words have acquired a technical meaning. [La.]
C.C. Art. 2047.

• An insurance policy should not be interpreted in an unreasonable or a
strained manner so as to enlarge or to restrict its provisions beyond what
is reasonably contemplated by its terms or so as to achieve an absurd
conclusion.

• Absent a conflict with statutory provisions or public policy, insurers,
like other individuals, are entitled to limit their liability and to impose
and to enforce reasonable conditions upon the policy obligations they
contractually assume.

• [I]f the policy wording at issue is clear and unambiguously expresses
the parties’ intent, the insurance contract must be enforced as written.
LSA-C.C. Art. 2046 (providing that when the words of a contract are
16

clear, no further interpretation may be made to determine the parties’
intent).

• When the language of an insurance policy is clear, courts lack the
authority to change or alter its terms under the guise of interpretation.
The determination of whether a contract is clear or ambiguous is a
question of law.

Moon v. Safeway Ins. Co. of Louisiana, 22-0455, pp. 5-6 (La. App. 4 Cir. 12/6/22),

353 So.3d 352, 356 (quoting Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas.

Co., 93-0911 (La. 1/14/94), 630 So.2d 759, 763-64)) (citations and footnotes

omitted).

The party seeking to establish coverage under an insurance policy has the

burden of proving every essential fact as well as that the party’s claim is within the

policy’s coverage. Maldonado, 13-0756, p. 11 (La. App. 1 Cir. 3/24/14), 146 So.3d

210, 218 (observing that “[a]s the party claiming coverage under the policy issued

by Twin City, KMTC-JV has the burden to prove coverage” as well as the burden

of showing that it fell “under the additional insured endorsement to prove

entitlement to coverage”). “If a petition does not allege facts within the scope of

coverage, an insurer is not legally required to defend a suit against its insured.”

Maldonado, 13-0756, p. 12, 146 So.3d at 219.

17

To resolve whether an insurer has a duty to defend, a court must consider not

only the policy language, but also the allegations of the plaintiff’s petition. This is

known as the “eight-corners rule”—the rule that “an insurer must look to the ‘four

corners’ of the plaintiff’s petition and the ‘four corners’ of its policy to determine

whether it owes that duty [to defend].” Maldonado, 13-0756, p. 11, 146 So.3d at

218.

In its summary judgment motion, ACE raised two issues. First, it contended

that the Tariff’s insurance provision was void and unenforceable pursuant to the

LAIA. Second, it contended that, even if the insurance provision was valid under

the LAIA, Ports did not qualify as an additional insured under the two policies

ACE issued to STG’s predecessor, XPO:

(i) An excess automobile policy (Policy No. XSA H252871130); and

(ii) A commercial general liability (“CGL”) policy (Policy
No. HDOG71449129) (collectively the “Policies”).14

14 ACE’s two insurance policies were delivered in Connecticut, presenting a potential conflicts of

law issue. But, as ACE acknowledges, the law of the two states involved—Louisiana and
Connecticut—is the same on the issues pertinent to ACE’s motion. Thus, the conflicts of law
issue need not be resolved in order to grant ACE’s summary judgment motion. See Maldonado v.
Kiewit Louisiana Co., p. 10 (La. App. 1 Cir. 3/24/14), 146 So.3d 210, 217.
18

Opposing ACE’s summary judgment motion, Ports contended that there were

genuine issues of material fact regarding whether the Policies provide coverage to

Ports as an additional insured.

Granting ACE’s summary judgment motion, the trial court, in its written

reasons for judgment, observed:

Based on the clear and unambiguous language of the policies, the Court
finds Ports does not qualify as an additional insured under either [of
ACE’s] polic[ies]. The applicable endorsements provide that an
organization is only an “insured” for “bodily injury” or “property
damage” resulting from acts or omissions of XPO [now STG] or its
employees, or caused, in whole or in part, by XPO’s acts or omissions,
or acts or omissions of those acting on XPO’s behalf.

For these reasons, the trial court found that Ports failed to carry it burden of proof.

On appeal, Ports repeats its argument that there are genuine issues of

material fact regarding whether Ports is provided insurance coverage as an

additional insured. Ports emphasizes that ACE acknowledged Endorsement No. 1

of the CGL policy is potentially triggered. Ports contends that, when viewed as a

whole, ambiguities exist in the CGL policy between the coverage form and

Endorsement No. 1.15 Ports contends that, when interpreted in Ports’ favor as the

15 Ports’ argument focus on the CGL policy. ACE points out that Ports did not oppose ACE’s

summary judgment motion with respect to the Auto policy and that Ports does not reference the
Auto policy or make any argument that it is entitled to coverage under it in its appeal. But, the
19

non-moving party, these ambiguities create a genuine issue of material fact as to

whether Ports qualified as an additional insured under ACE’s CGL policy.16

ACE counters that Ports is not a named insured under the Policies. Although

ACE acknowledges that the Policies contain additional insured endorsements that

are potentially triggered, the Policies provide additional insured coverage only

when the following two conditions both are met:

(i) The named insured agrees to include the organization as an additional
insured under a written contract executed before the loss; and

(ii) The organization is an insured only for “bodily injury” or “property
damage” resulting from or caused by the acts or omissions of the named

trial court’s decision was based on a consideration of both Policies; the trial court, in its reasons
for judgment, observed that “[b]ased on the clear and unambiguous language of the policies, the
Court finds Ports does not qualify as an additional insured under either [of ACE’s] polic[ies].”
Given Ports only addresses the CGL policy in its appellate briefs, we find, as ACE contends, that
Ports waived any argument regarding the Auto policy; only the CGL policy, which was briefed,
is before us. See Burgess v. Shi Gang Zheng, 17-0665, n.4 (La. App. 4 Cir. 10/10/18), 257 So.3d
764, 769 (quoting McMaster v. Progressive Sec. Ins. Co., 14-0155, pp. 6-7 (La. App. 4 Cir.
10/29/14), 152 So.3d 979, 983, for the proposition that it is “‘well settled that if an appellant
identifies an assignment of error or an issue presented for review, but fails to brief that point with
citations to the record and support in the law, that issue or assignment is deemed waived’”).
16 Endorsement No. 1 of the CGL policy provides, in part, as follows:

A. Section II – Who Is An Insured is amended to include as an additional insured
the person(s) or organization(s) shown in the Schedule, but only with respect to
liability for “bodily injury,” [or] “property damage” . . . caused, in whole or in part,
by your acts or omissions or the acts or omissions of those acting on your behalf:
1. In the performance of your ongoing operations; or
2. In connection with your premises owned by or rented to you.
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insured, its employees or agents, or those acting on the named insured’s
behalf.

ACE contends that, assuming the first condition is met, there is no allegation

that any “bodily injury” or “property damage” resulted from or caused by the acts

or omissions of the named insured—here, STG’s predecessor, XPO; its employees

or agents; or anyone acting on XPO’s behalf. To the contrary, Mr. Riggio alleges

in the petition that Ports and its employee, Mr. Bridges, caused Mr. Riggio’s

injuries, which is consistent with Mr. Bridges’ deposition testimony. Thus, ACE

contends that Ports cannot meet the second condition.

In support of its position, ACE cites a trio of cases interpreting similarly

worded additional insured provisions.17 ACE contends that those cases stand for

the proposition that when, as here, there is no alleged liability on the part of the

named insured (here, STG’s predecessor, XPO), additional insured coverage is not

owed; no coverage is provided for the additional insured’s sole negligence.18 Ports,

17 Maldonado, supra; Houston Specialty Ins. Co. v. Chesapeake Operating, LLC, No. 5:15-CV-

47, 2017 WL 4322828, at *5 (W.D. La. Sept. 27, 2017) (unpub.); and Holzenthal v. Sewerage &
Water Bd. of New Orleans, 06-0796 (La. App. 4 Cir. 1/10/07), 950 So.2d 55.
18 ACE contends that there are two independent grounds to affirm the trial court’s ruling

dismissing Ports’ claims against ACE: 1) the insurance provision contained in Section II-210
relied on by Ports is void due to the application of the LAIA; and 2) even if insurance provision
of the Tariff is valid, Ports does not qualify as an insured under the clear and unambiguous
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in its reply brief, argues that those cases cited by ACE are inapposite and do not

address the situation presented here—a party that is contractually obligated to

provide insurance coverage to another party as a named insured. Ports’ argument is

unpersuasive.

Ports’ argument focuses on the first condition—the named insured agrees to

include the organization as an additional insured under a written contract executed

before the loss. But, the trial court, agreeing with ACE’s argument, presumed the

first condition was met and focused on the second one. As ACE contends, the trial

court found that, assuming Ports is an insured, it would only be an insured for

“bodily injury” or “property damage” resulting from or caused by the acts or

omissions of the named insured, its employees or agents, or those acting on the

named insured’s behalf. The petition is devoid of any allegation that the underlying

collision was caused by any acts or omissions of the named insured. Thus, Ports

cannot establish the second condition. Both conditions must be met to establish

coverage as an additional insured. The trial court correctly found that Ports failed

to meet its burden of proving that it is an additional insured.

provisions of the ACE Policies. Because we find the second reason persuasive, we do not
address the first one.

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Ports further contends that ACE’s argument, which the trial court adopted,

ignores another portion of Endorsement No. 1 to the CGL policy, which states:

If coverage provided to the additional insured is required by a contract
or agreement, the insurance afforded to such additional insured will not
be broader than that which you are required by the contract or
agreement to provide for such additional insured.

The gist of Ports’ argument is that this additional limiting language in

Endorsement No. 1 creates additional insured coverage.19 But, as ACE points out,

this is a limiting provision—it restricts coverage provided to the additional insured

under Endorsement No. 1 by stating it will not be broader than that which is

required by the contract or agreement. Stated otherwise, this limiting provision

expresses that for those qualifying as an additional insured under the prior

paragraph of Endorsement No. 1, coverage will not be broader than the contract at

19 Ports’ argument regarding this provision is that the Tariff required STG to provide insurance

coverage to Ports as a named insured. Thus, the coverage provided to Ports can be no broader
than that of a named insured. Ports contends that, interpreting this limiting provision in the light
most favorable to Ports as the non-moving party, if Ports is considered a named insured under
the policy, as the Tariff required Ports to be so named, then because the policy states that “the
words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations and any other
person or organization qualifying as a Named Insured under this policy,” the distinction ACE
emphasizes—that a party is only an additional insured “with respect to liability for ‘bodily
injury’ … caused, in whole or in part, by your acts or omissions or the acts or omissions of those
acting on your behalf,” with ACE arguing that “you” and “your” refers to STG’s acts or
omissions only—vanishes because “you” and “your” would then also refer to Ports’ acts or
omissions.
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issue. Moreover, this limiting provision neither defines nor amends “Who is an

Insured.” Nor does this limiting provision negate the language of the prior

paragraph of Endorsement No. 1, imposing the two conditions to qualify as an

additional insured. Given the allegations of the petition, Ports faces no liability for

“bodily injury” or “property damage” caused by the named insured, XPO, STG’s

predecessor; XPO’s employees; or those acting on its behalf.

Based on the unambiguous policy language coupled with the allegations of

the petition, we conclude that Ports failed to meet its burden of proving it is an

additional insured and that ACE has no duty to defend or to indemnify Ports.

Accordingly, we affirm the trial court’s decision granting ACE’s summary

judgment motion.

DECREE

For the foregoing reasons, the trial court’s decision granting the joint

summary judgment motion filed by STG and Safeco is reversed; the trial court’s

decision granting ACE’s summary judgment motion is affirmed; and this case is

remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

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