Brian D. Claiborne v. Recover Insurance Company Risk Retention Group, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

BRIAN D. CLAIBORNE NO. 2025 CW 0980

VERSUS PAGE 1 OF 2

RECOVER INSURANCE COMPANY FEBRUARY 12, 2026

RISK RETENTION GROUP, INC.

ET AL

In Re: Brian D. Claiborne, applying for supervisory writs, 19th
Judicial District Court, Parish of Bast Baton Rouge, No.
742950.

BEFORE: THERIOT, BALFOUR, AND HAGGERTY,1! JJ.

WRIT GRANTED. The district court’s September 8, 2025
judgment, which granted the “Motion for Partial Summary Judgment”
filed by defendant, Recover Insurance Company Risk Retention
Group, Inc. (“Recover”), and dismissed all claims against it with
prejudice, is reversed. Recover failed to meet its burden of
establishing there were no genuine issues of material fact and it
was entitled to judgment as a matter of law. The policy issued by
Recover is an occurrence policy, not a claims-made policy. Under
the “Liability Coverage” section of the policy’s Garage Cover Form,
the policy provides, “We will pay all sums an ‘insured’ legally
must pay as damages because of ‘bodily injury’ or ‘property damage’
to which this insurance applies, caused by an ‘accident’ and
resulting from ‘garage operations’ involving the ownership,
maintenance or use of covered ‘autos’, for dealer business
purposes.” According to the La Supreme Court, “The major
distinction between the “occurrence” policy and the “claims made”
policy constitutes the difference between the peril insured. In
the “occurrence” policy, the peril insured is the “occurrence”
itself. Once the “occurrence” takes place, coverage attaches even
though the claim may not be made for some time thereafter. Anderson
v. Ichinose, 98-2157 (La. 9/8/99), 760 So. 2d 302, 305. In a
liability policy, the function of notice requirements is simply to
prevent the insurer from being prejudiced, not to provide a
technical escape-hatch by which to deny coverage in the absence of
prejudice nor to evade the fundamental protective purpose of the
insurance contract to assure the insured and the general public
that liability claims will be paid up to the policy limits for
which premiums were collected. Therefore, unless the insurer is
actually prejudiced by the insured's failure to give notice
immediately, the insurer cannot defeat its liability under the
policy because of the non-prejudicial failure of its insured to
give immediate notice of an accident or claim as stipulated by a
policy provision. State ex rel. Div. of Admin., Off. of Risk Mgmt.
v. Nat'l Union Fire Ins. Co. of Louisiana, 2010-0689 (La. App. ist
Cir. 2/11/11), 56 So.3d 1236, 1246, writ denied, 2011-0849 (La.
6/3/11), 63 So.3d 1023 (Where insurer did not submit any evidence
of actual prejudice, apart from the delay, in support of its motion
for summary judgment, it failed to establish a prima facie case of
delayed notice resulting in actual prejudice, and its motion was
appropriately denied by the trial court.) [Citations omitted]. In

‘Haggerty, J., serving pro tempore, by special appointment of the Louisiana
Supreme Court.

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

NO. 2025 CW 0980

PAGE 2 OF 2

this case, the accident occurred on June 15, 2023, and Recover
asserted its first notice occurred on August 22, 2023, violating
the notice provision in its policy which required notice to it of
the “accident” or “occurrence” within sixty days. We fird Recover
failed to establish actual prejudice from the alleged late notice,
and accordingly, the “Motion for Partial Summary Judgment” filed

by defendant, Recover Insurance Company Risk Retention Group, Inc.
is denied.

MRT

BDH

COURT OF APPEAL, FIRST CIRCUIT

DE
FOR THE COURT