Nixon R. Calix Versus Ideal Market 6, Hamdallah, L.L.C., Kaki and Son, Llc., Hamdallah Hasan "Mario" Kaki, Muwafak "Mike" Kaki, Monadel "Cory" Elbarqa, Nofal "George" Haifa John Does 1-4, El Cortez Foods, LLC, and Abc & Xyz Insurance Company

NIXON R. CALIX NO. 21-CA-555

VERSUS FIFTH CIRCUIT

IDEAL MARKET # 6, HAMDALLAH, L.L.C., COURT OF APPEAL
KAKI AND SON, LLC., HAMDALLAH HASAN
"MARIO" KAKI, MUWAFAK "MIKE" KAKI, STATE OF LOUISIANA
MONADEL "CORY" ELBARQA, NOFAL
"GEORGE" HAIFA JOHN DOES 1-4, EL
CORTEZ FOODS, LLC, AND ABC & XYZ
INSURANCE COMPANY

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 750-092, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

July 13, 2022

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and John J. Molaison, Jr.

AFFIRMED
JGG
RAC
JJM

COUNSEL FOR PLAINTIFF/APPELLANT,
NIXON R. CALIX
Kelly S. Rizzo
John W. Redmann
Edward L. Moreno

COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT,
KAKI & SON LLC D/B/A IDEAL MARKET #6; EL CORTEZ FOODS, LLC;
AND HAMDALLAH LLC
Raymond A. Pelleteri, Jr.

COUNSEL FOR INTERVENOR/APPELLEE,
STATE FARM FIRE AND CASUALTY COMPANY
Darrin M. O'Connor
Ashley G. Haddad
Emily S. Morrison

GRAVOIS, J.

In this case, State Farm Fire and Casualty Company filed a motion for

partial summary judgment and a motion for summary judgment, arguing that it

owed no duty to defend or indemnify defendants, Hamdallah, L.L.C., d/b/a Ideal

Market #9, Kaki and Son, L.L.C., d/b/a Ideal Market #6, and El Cortez Foods,

L.L.C. (“the LLCs”), against the claims asserted by plaintiff, Nixon Calix. The

trial court granted the motion for partial summary judgment on January 10, 2020

and the motion for summary judgment on May 10, 2021, and dismissed all claims

against State Farm with prejudice. Both the LLCs and Mr. Calix appeal the trial

court’s judgments. For the reasons that follow, we affirm the judgments under

review.

FACTS AND PROCEDURAL HISTORY

On May 28, 2015, Nixon Calix filed a petition for damages against Ideal

Market #6, and others, alleging that while employed at Ideal Market #6, he was

assaulted and battered by fellow employees who also threatened his life. Mr. Calix

filed an amended petition against the same defendants on June 8, 2015.1

On March 22, 2018, Mr. Calix filed a Second Amended, Supplemental and

Restated Petition for Damages, naming as defendants: Hamdallah Hasan Kaki

(“Mario Kaki”), Mohammad Hasan Kaki, Muwafak Hasan Kaki, Mondel “Cory”

Elbarqa,2 Hamdallah, L.L.C., d/b/a Ideal Market #9, Kaki and Son, L.L.C., d/b/a

Ideal Market #6, El Cortez Foods, L.L.C., and three unnamed liability insurers of

the LLCs. The petition alleged that Mario Kaki and Muwafak Kaki held

ownership interest in Kaki and Son, L.L.C, which operated Ideal Market #6;

1
The allegations contained in Mr. Calix’s original and first amended petitions for
damages were superseded by the allegations contained in his Second Amended, Supplemental
and Restated Petition for Damages, which are discussed in detail below.
2
Mr. Elbarqa’s nickname is also spelled “Corey” in several places in the record.

21-CA-555 1

Hamdallah, L.L.C., which operated Ideal Market #9; and El Cortez Foods, L.L.C,

located at 2309 L & A Road in Metairie, Louisiana.3

According to the facts alleged in the petition, Mr. Calix was an employee in

the meat department at Ideal Market #6, where Mario Kaki, Mohammad Kaki, and

Muwafak Kaki were also employed in managerial capacities. On April 29, 2015,

Mohammad Kaki and Cory Elbarqa transported Mr. Calix to 2309 L & A Road.

There, Mr. Calix was accused of stealing meat from Ideal Market #6 and was

“subjected to a violent physical assault and/or battery” by Mario Kaki, Mohammad

Kaki, and Cory Elbarqa. Mario Kaki brandished a firearm, pointed it at Mr. Calix,

and threatened to kill him if he did not confess to the alleged theft. When Mr.

Calix refused to confess, Mario Kaki used the firearm as well as his fists and legs

to beat Mr. Calix’s head, face, and body for approximately four hours. Mr. Calix

claimed that he was “severely beaten, punched, kicked, abused, and terrorized” by

Mario Kaki while Mohammad Kaki and Cory Elbarqa watched and prevented him

from leaving. As a result, Mr. Calix alleged that he suffered severe mental and

physical injuries.

Mr. Calix alleged in the petition that his injuries were caused by the

following “intentional acts” of Mario Kaki, Mohammad Kaki, and Cory Elbarqa:

assault, battery, kidnapping, false imprisonment, and intentional infliction of

emotional distress. Additionally, Mr. Calix claimed that the LLCs were

vicariously liable under the doctrine of respondeat superior for the derivative

liability, negligence, and fault of its employees, and were liable individually,

jointly, severally, and in solido through their own negligence, specifically for

negligent hiring, negligent training, negligent supervision, and negligent retention.

3
The petition alleged that the three LLCs were owned and operated as a common and/or
single business enterprise that operated out of 2309 L & A Road.

21-CA-555 2

On May 8, 2019, State Farm, the liability insurer of the LLCs, filed a

petition for intervention, seeking a declaration that the three insurance policies

issued by State Farm to the LLCs precluded coverage for the acts alleged in the

lawsuit and that it had no duty to defend the claims.

Subsequently, State Farm filed a motion for partial summary judgment in

which it argued that the three insurance policies issued to the LLCs do not provide

coverage for bodily injury resulting from an intentional or expected injury or a

willful and malicious or criminal act of the insured. Given the policy language,

State Farm argued that the intentional acts of assault, battery, kidnapping, false

imprisonment, and intentional infliction of emotional distress alleged by Mr. Calix

against the LLCs and their members, officers, managers, and/or employees are

excluded from coverage. Additionally, State Farm argued that if the alleged acts

are found to be acts of negligence, then Mr. Calix’s remedy as an employee against

an employer for injuries arising during the course and scope of employment is

workers’ compensation under the provisions of La. R.S. 23:1032. In support of its

motion, State Farm attached as an exhibit the affidavit of Carolyn Michener, a

representative of State Farm, certifying that the three State Farm policies were in

effect on April 29, 2015 and are true and accurate records of State Farm.

Both the LLCs and Mr. Calix opposed the motion for partial summary

judgment. Following a hearing on January 8, 2020, the trial court signed a written

judgment on January 10, 2020, granting State Farm’s motion for partial summary

judgment. The trial court found:

The policies of insurance at issue exclude coverage for bodily
injury expected or intended to cause harm or which is the result of
willful and malicious, or criminal acts. Thus, the policies exclude
coverage of any liability imposed on defendants arising from
plaintiff’s claims of assault, battery, kidnapping, false imprisonment
and/or intentional infliction of emotional distress alleged against
Hamdallah Hasan Kaki, Mohammad Hasan Kaki, Muwafak Hasan
Kaki, and Monadel Elbarqa. Furthermore, to the extent the actions of
Hamdallah Hasan Kaki, Mohammad Hasan Kaki, Muwafak Hasan

21-CA-555 3

Kaki, and Monadel Elbarqa are deemed to be negligent, any liability
imposed on defendants arising from their alleged actions are barred
from coverage as bodily injury to a co-employee and/or by the
workers’ compensation exclusions. Because the policies do not offer
coverage to Hamdallah Hasan Kaki, Mohammad Hasan Kaki,
Muwafak Hasan Kaki, or Monadel Elbarqa for their alleged actions at
issue in this lawsuit, the policies to not offer coverage to Kaki & Son,
L.L.C., El Cortex Food, L.L.C., or Hamdallah, L.L.C. for any
vicarious liability stemming from the employees’ actions.

… The State Farm policies do not provide coverage to any
defendant for liability which may be imposed on defendants as a
result of plaintiff’s claims alleged directly against Hamdallah Hasan
Kaki, Mohammad Hasan Kaki, Muwafak Hasan Kaki, or Monadel
Elbarqa for bodily injury sustained from the employees’ intentional or
negligent acts. This judgment does not extend to plaintiff’s claims for
damages for negligence alleged directly against Hamdallah, L.L.C.,
Kaki and Son, L.L.C., and El Cortez Foods, L.L.C., including but not
limited to, plaintiff’s claims of negligent hiring, negligent training,
negligent supervision, and negligent retention. The court makes no
determination at this time regarding coverage of plaintiff’s alleged
damages resulting from claims made directly against Hamdallah,
L.L.C., Kaki and Son, L.L.C., and El Cortez Foods, L.L.C.

Mr. Calix subsequently filed a writ application challenging this ruling,

which this Court did not consider. Calix v. Ideal Market #6, 20-116 (La. App. 5

Cir. 4/30/20) (unpublished writ disposition).

On November 12, 2020, State Farm filed a motion for summary judgment

alleging that there is no coverage under its policies for the claims against the LLCs

for negligent hiring, negligent training, negligent supervision, and/or negligent

retention. State Farm attached the deposition of Mr. Calix in which he testified

that Mario Kaki was the only employee that hit and attacked him. State Farm

argues that any liability based on negligent supervision stems from Mario Kaki’s

intentional actions against Mr. Calix and the claims for negligent hiring are just a

“back door approach” to seeking coverage.

Mr. Calix and the LLCs opposed the motion for summary judgment. A

hearing on the motion was conducted on April 16, 2021. On May 10, 2021, the

trial court signed a written judgment granting the motion for summary judgment

and dismissing all of Mr. Calix’s remaining claims against State Farm with

21-CA-555 4

prejudice. In written reasons for judgment dated June 14, 2021, the trial court

found that “irrespective of the legal theory argued by [Mr. Calix], the intentional

actions of the owners/managers of the defendant companies, in particular the

actions of Mario Kaki, are the essential cause of [Mr. Calix’s] alleged damages.

Coverage for these actions is specifically excluded by the policies.” This appeal

followed.

LAW

After an opportunity for adequate discovery, a motion for summary

judgment shall be granted if the motion, memorandum, and supporting documents

show that there is no genuine issue as to material fact and that the mover is entitled

to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A genuine issue of

material 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 that issue and

summary judgment is appropriate. King v. Illinois Nat. Ins. Co., 08-1491 (La.

4/3/09), 9 So.3d 780, 784.

Appellate courts review summary judgments de novo using the same criteria

applied by trial courts to determine whether summary judgment is appropriate.

Pizani v. Progressive Ins. Co., 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086,

1087. A de novo review or an appeal de novo is an appeal in which the appellate

court uses the trial court’s record, but reviews the evidence and law without

deference to the trial court’s rulings. Sarasino v. State through Department of

Public Safety and Corrections, 16-408 (La. App. 5 Cir. 3/15/17), 215 So.3d 923,

928. The decision as to the propriety of a grant of a motion for summary judgment

must be made with reference to the substantive law applicable to the case. Muller

v. Carrier Corp., 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

A dispute as to the issue of whether, as a matter of law, the language of an

insurance policy provides coverage to a party, can properly be resolved within the

21-CA-555 5

context of a motion for summary judgment. Domingue v. Reliance Ins. Co., 619

So.2d 1220, 1223 (La. App. 3d Cir. 1993). An insurer seeking to avoid coverage

through summary judgment bears the burden of proving the applicability of an

exclusion within a policy. Doerr v. Mobil Oil Corp., 00-0947 (La. 12/19/00), 774

So.2d 119, 124, modified on other grounds on reh’g, 00-0947 (La. 3/16/01), 782

So.2d 573. Summary judgment declaring a lack of coverage under an insurance

policy may not be rendered unless there is no reasonable interpretation of the

policy, when applied to the undisputed material facts shown by the evidence

supporting the motion, under which coverage could be afforded. Beck v.

Burgueno, 43,557 (La. App. 2 Cir. 9/17/08), 996 So.2d 404, 409.

An insurance policy is an agreement between the parties and should be

interpreted by using ordinary contract principles. Mattingly v. Sportsline, Inc., 98-

230 (La. App. 5 Cir. 10/28/98), 720 So.2d 1227, 1229, writ denied, 98-2938 (La.

1/29/99), 736 So.2d 830; Ledbetter v. Concord General Corp., 95-0809 (La.

1/6/96), 665 So.2d 1166. The extent of coverage is determined by the parties’

intent, as reflected by the words of the policy. Id. Unless the words of the policy

have acquired a technical meaning, the words used in the policy will be construed

using their plain, ordinary and generally prevailing meaning. La. C.C. art. 2047;

Louisiana Ins. Guar. Ass’n. v. Interstate Fire & Cas. Co., 93-0911 (La. 1/14/94),

630 So.2d 759. The agreement must be enforced as written if the policy wording

at issue is clear and expresses the intent of the parties. Ledbetter, supra; Pareti v.

Sentry Indem. Co., 536 So.2d 417 (La. 1988).

An insurance company may limit coverage in any manner, as long as the

limitations do not conflict with statutory provisions or public policy. Reynolds v.

Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1883. The

exclusionary provisions of an insurance contract are strictly construed against the

21-CA-555 6

insurer, and any ambiguity in the exclusion is construed in favor of the insured.

Garcia v. St. Bernard Parish Sch. Bd., 576 So.2d 975 (La. 1991).

POLICY PROVISIONS

The pertinent provisions of the subject policies are as follows.4

SECTION II – LIABILITY

Coverage L – Business Liability

1. When a Limit of Insurance is shown in the Declarations for
Coverage L - Business Liability, we will pay those sums that
the insured becomes legally obligated to pay as damages
because of “bodily injury’’, “property damage” or “personal
and advertising injury’’ to which this insurance applies. We
will have the right and duty to defend the insured by counsel of
our choice against any “suit” seeking those damages. However,
we will have no duty to defend the insured against any “suit”
seeking damages for “bodily injury”, “property damage” or
“personal and advertising injury” if all of the allegations of the
“suit” are explicitly excluded by this insurance. We may, at our
discretion, investigate any “occurrence” or offense and settle
any claim or “suit” with or without the insured’s consent, for
any reason and at any time.
***

Section II – Exclusions
Applicable to Coverage L - Business Liability, this insurance does
not apply to:

1. Expected or Intended Injury
a. “Bodily injury” or “property damage” expected or intended
to cause harm as would be expected by a reasonable person;
or

b. “Bodily injury” or “property damage” which is the result of
willful and malicious, or criminal acts of the insured.

This exclusion does not apply to “bodily injury” or “property
damage” resulting from the use of reasonable force to protect
persons or property.

***

4
The pertinent provisions are the same in each of the subject policies.

21-CA-555 7

4. Workers’ Compensation and Similar Laws
Any obligation of the insured under a workers’ compensation,
disability benefits or unemployment compensation law or any
similar law.

5. Employer’s Liability
a. “Bodily injury” to:

(1) An “employee” or a former “employee” of the insured
arising out of and in the course of:

(a) Employment by the insured; or

(b) Performing duties related to the conduct of the
insured’s business; or

(2) The spouse, child, parent, brother or sister of that
“employee” as a consequence of Paragraph (1) above.

b. This exclusion applies:
(1) Whether the insured may be liable as an employer or in
any other capacity; and

(2) To any obligation to share damages with or repay
someone else who must pay damages because of the
injury.

This exclusion does not apply to liability assumed by the
Insured under an “insured contract”.
***

Section II – Who Is An Insured
1. Except for liability arising out of the use of “non-owned autos”:

a. If you are designated in the Declarations as:
***

(3) A limited liability company, you are an insured. Your
“members” are also insureds, but only with respect to
the conduct of your business. Your “managers” are
insureds, but only with respect to their duties as your
“managers”.

***
b. Each of the following is also an insured:
(1) Your “volunteer workers” only while performing duties
related to the conduct of your business, or your
“employees”, other than either your “executive officers”
(if you are an organization other than a partnership, joint
venture or limited liability company) or your
“managers” (if you are a limited liability company), but

21-CA-555 8

only for acts within the scope of their employment by
you or while performing duties related to the conduct of
your business. However, none of these “employees” or
“volunteer workers” are insureds for:

(a) “Bodily injury” or “personal and advertising injury”:
I. To you, to your partners or members (if you are a
partnership or joint venture), to your “members”
(if you are a limited liability company), to a
co“employee” while in the course of his or her
employment or performing duties related to the
conduct of your business, or to your other
“volunteer workers” while performing duties
related to the conduct of your business;

***

Section II – Definitions
***

3. “Bodily injury” means bodily injury, sickness or disease
sustained by a person, including death resulting from any of
these at any time. “Bodily injury” includes mental anguish or
other mental injury caused by the “bodily injury”.

ANALYSIS
On appeal, Mr. Calix and the LLCs contend that the trial court erred in

granting both the motion for partial summary judgment on January 10, 2020 and

the motion for summary judgment on May 10, 2021.

Mr. Calix argues that in the week preceding the incident, there was a series

of “broader acts and omissions” that gave rise to the incident and the “expected

and intended injury” exclusion does not apply since a substantial part of his

injuries did not arise from an intention to cause harm, but rose to a level of harm

over the course of a week. Additionally, Mr. Calix argues that the “expected or

intended injury” exclusion does not apply to preclude vicarious liability or liability

premised on respondeat superior. Finally, he contends that State Farm failed to

meet its burden in its second motion for summary judgment because his injuries

arose out of negligent hiring, training, supervision, and/or retention over multiple

employees of multiple employers and not a single event and action of one person.

21-CA-555 9

The LLCs contend that genuine issues of material fact remain regarding

whether the acts and resulting injury were intended by the insured and whether the

employees’ tortious conduct was within the course and scope of their employment

for the employer to be vicariously liable. Nonetheless, the LLCs argue that they

are “the insureds” under the policies, not the employees, and since they did not

expect or intend the injury to Mr. Calix, they are not precluded from being insured

against the intentional acts of their employees. They argue that there is coverage

under the policies for Mr. Calix’s claims of negligent hiring, negligent training,

negligent supervision, and negligent retention.

The State Farm policies contain an exclusion for expected or intended

injury, which provides:

1. Expected or Intended Injury
a. “Bodily injury” or “property damage” expected or intended to
cause harm as would be expected by a reasonable person; or

b. “Bodily injury” or “property damage” which is the result of
willful and malicious, or criminal acts of the insured.

The LLCs argue that this exclusion for “expected or intended injury” is not

an intentional act exclusion, but is an intentional injury exclusion that has been

found to be ambiguous. They argue that for an intentional injury exclusion,

whether or not the act and injury were intended by the insured is a question of fact

to be determined by the trier of fact.

In support of their argument, the LLCs cite to Breland v Schilling, 550 So.2d

609 (La. 1989) and Love v. Sirey, 12-823 (La. App. 5 Cir. 5/30/13), 119 So.3d 732.

In Love, the policy language excluded coverage for bodily injury which is either

“expected or intended by the insured.” (Emphasis added.) There, this Court

determined that because the insurance policy contained an intentional injury

exclusion, a genuine issue of material fact existed as to the subjective intent of the

alleged tortfeasor that precluded summary judgment under an intentional injury

21-CA-555 10

exclusion. Id. at 739-40. This Court cited to Breland, where the Supreme Court

stated:

This clause does not by its precise terms exclude coverage for
bodily injury caused by the insured’s intentional act. Rather, it
excludes coverage for bodily injury “expected or intended from the
standpoint of the Insured.” The phrase “bodily injury ... which is
expected or intended,” emphasizes that an excluded injury is one
which the insured intended, not one which the insured caused,
however intentional the injury-producing act. The next phrase, “from
the standpoint of the Insured,” emphasizes again that it is the insured’s
subjective intention and expectation which delimit the scope of the
exclusion. The subjective intention and expectation of the insured
determine which injuries fall within and which fall beyond the scope
of coverage under this policy.

This inquiry into the subjective intention or expectation of the
insured contrasts sharply with the traditional tort inquiry into an
actor’s intent. The Restatement (Second) of Torts describes intended
consequences as those which the actor knows are “substantially
certain” to result from an act, whether the actor consciously desires
those consequences or not. Restatement (Second) of Torts § 8A
(1965); see also W. Prosser, Law of Torts § 8 (4th ed. 1971). While
the inquiry regarding intentional torts asks which consequences an
objective reasonable person might expect or intend as the result of a
deliberate act, we are concerned, under the language of this insurance
contract, with the injury subjectively intended or expected by the
insured.
Breland, 550 So.2d at 611. (Footnote omitted.) (Emphasis in the original.)

Upon review, we find these cases distinguishable, however, from the present

case. In Breland and Love, the courts considered the specific policy language,

which excluded coverage for bodily injury which is either expected or intended “by

the insured” or “from the standpoint of the insured.” In the present case, the policy

language excludes coverage for bodily injury “expected or intended to cause harm

as would be expected by a reasonable person.” Upon review, we find that

reasonable minds would not disagree that, accepting the allegations of the petition

as true, Mario Kaki’s actions of using a firearm as well as his fists and legs to beat

Mr. Calix’s head, face, and body for approximately four hours were expected or

intended to cause bodily injury. Accordingly, we find no error in the trial court’s

finding that the policies exclude coverage of any liability imposed on any

21-CA-555 11

defendants arising from Mr. Calix’s claims of assault, battery, kidnapping, false

imprisonment, and/or intentional infliction of emotional distress alleged against

Mario Kaki, Mohammad Kaki, Muwafak Kaki, and Cory Elbarqa.

Mr. Calix argues on appeal that this exception does not apply since it was

the acts and omissions of the store managers, Sam Zaben and Cory Elbarqa, that

gave rise to his damages in a “but for” way. Mr. Calix claims that their inability to

properly investigate the meat theft and determine who was responsible, as well as

their decision to refer the matter to Mario Kaki and to transport him to another

facility, all created the peril that gave rise to his injuries.

While Mr. Calix now claims that it was the managers’ failure to properly

investigate the alleged theft in the week preceding the incident that gave rise to his

injuries, in the petition for damages he alleged that he was subjected to a “violent

physical assault and/or battery” by defendants. He alleged that Mario Kaki

brandished him with a firearm and threatened to kill him if he would not admit to

stealing the meat. He specifically claimed that his injuries were caused by the

“intentional acts” of Mario Kaki, Mohammad Kaki and Cory Elbarqa, which

include: assault, battery, kidnapping, false imprisonment, and intentional infliction

of emotional distress. Accordingly, we find no merit to this argument.

In any event, as the trial court correctly pointed out in its judgment, even if

defendants’ actions are deemed to be negligent, any liability imposed on

defendants arising from their alleged actions are excluded from coverage based on

bodily injury to a co-employee. The policies define who is an insured as follows:

Section II – Who Is An Insured
1. Except for liability arising out of the use of “non-owned autos”:

a. If you are designated in the Declarations as:
***

(3) A limited liability company, you are an insured. Your
“members” are also insureds, but only with respect to

21-CA-555 12

the conduct of your business. Your “managers” are
insureds, but only with respect to their duties as your
“managers”.

***

b. Each of the following is also an insured:
(1) Your “volunteer workers” only while performing duties
related to the conduct of your business, or your
“employees”, other than either your “executive officers”
(if you are an organization other than a partnership, joint
venture or limited liability company) or your “managers”
(if you are a limited liability company), but only for acts
within the scope of their employment by you or while
performing duties related to the conduct of your business.
However, none of these “employees” or “volunteer
workers” are insureds for:
(a) “Bodily injury” or “personal and advertising injury”:

I. To you, to your partners or members (if you are a
partnership or joint venture), to your “members”
(if you are a limited liability company), to a
co“employee” while in the course of his or her
employment or performing duties related to the
conduct of your business, or to your other
“volunteer workers” while performing duties
related to the conduct of your business;

(Emphasis added.)
Mr. Calix alleged in his petition for damages that both he and the

defendant/managers were employed by Ideal Market #6, and they were in the

course and scope of their employment on April 29, 2015, when he was physically

assaulted. Thus, the defendant/managers are not “insureds” under this policy

language for the bodily injuries they caused to Mr. Calix.

Having found that the policies exclude coverage for the intentional acts of

the employees/managers, we find that the policies do not provide coverage to the

LLCs for any vicarious liability based on the employees’ actions.

On appeal, Mr. Calix argues that jurisprudence supports the argument that an

intentional injury inflicted by an employee does not preclude coverage for the

vicarious liability of the employer. In support, he cites to Rivers v. Brown, 168

So.2d 400 (La. App. 3d Cir. 1964), writ refused, 247 La. 250, 170 So.2d 509

21-CA-555 13

(1965). In Rivers, the plaintiff alleged that he was pistol whipped and kicked by an

employee who was the president, principal stockholder, and superintendent of

construction for the defendant employer. The insurer argued that coverage was

excluded based on a policy exclusion that excluded any assault and battery

committed “by or at the direction of the insured.” Id. at 401. The court,

considering the specific language of the exclusion, found that the policy only

excluded assaults committed by or at the direction of the named insured and thus,

the court found that the policy did not exclude coverage for the employee’s actions

since he was just an omnibus insured and not the named insured. Id. at 401-02.

Upon review, we find that Rivers is factually distinguishable from the

present case since, again, the court there considered the specific policy language of

the exclusion, which differs from the policy language in the present case. Unlike

in Rivers, we have found that based on the policy language in the present policies,

the intentional actions of the employees are excluded from coverage. Thus, we

find no merit to Mr. Calix’s argument in this regard.

Finally, Mr. Calix and the LLCs also argue that the trial court erred in

granting the second motion for summary judgment since genuine issues of material

fact remain regarding coverage for Mr. Calix’s claims against the LLCs for

negligent hiring, negligent training, negligent supervision, and negligent retention.

In its reasons for judgment in granting the second motion for summary

judgment, the trial court relied on and citied to Huey T. Littleton Claims, Inc. v.

Employers Reinsurance Corp., 933 F.2d 337 (5th Cir. 1991). In Littleton, the

insured/employer sought to be indemnified by its insurer for the acts of one of its

employees. It was determined that the employee’s actions were excluded under

Section IV of the policy that stated: “[t]his policy does not apply to: (a) any

dishonest, fraudulent, illegal, criminal, or malicious act, other than malicious

prosecution.” The insured argued that notwithstanding this exclusion, the policy

21-CA-555 14

should provide coverage for its “‘negligent acts or omissions which may have

resulted in [the employee’s] embezzlement of funds from clients of the service’—

that is to say, for [the insured’s] independent negligence (if any).” The court found

that the exclusion precludes coverage for the insured when its liability for the loss

is based upon the excluded conduct of its employee. The court stated:

… Irrespective of the legal theory through which [the insured’s]
clients proceed against it—whether vicarious tort liability,
independent tort liability, or even contractual liability—[the
employee’s] perfidy remains an essential if not the legal proximate
cause of the clients’ damage. Alternatively stated, regardless of why
[the insured] is held liable, any claim it files with [the insurer] will in
the end stem from [the employee’s] “dishonest,” “criminal” act—
expressly excluded under Section VI.

Id. at 339.

The court in Littleton found support in the Louisiana Supreme Court’s

decision in Lamkin v. Brooks, 498 So.2d 1068 (La. 1986). In Lamkin, the Supreme

Court, after finding that the insured was vicariously liable for the intentional acts

of its employee, concluded it did not need to reach the issue of “independent

negligence.” The court then found that the intentional act exclusion in the

insured’s policy precluded the insured from obtaining indemnification from the

insurer. The court in Littleton stated:

… If the supreme court had taken the path [the plaintiff] urges us
to follow—where independent negligence can afford coverage even
when vicarious liability expressly cannot—it would have had to
address the question of the town’s independent negligence. The fact
that the Lamkin court did not strongly implies that underlying
negligence on the part of the employer has no bearing on the scope of
a policy when an employee for whom the employer is vicariously
liable commits acts (or omissions) falling squarely within an
exclusionary clause.

Littleton, 933 F.2d at 340. (Footnote omitted.) (Emphasis in the original.)

Upon review, we too find these cases persuasive, and thus find no error in

the trial court’s judgment granting the second motion for summary judgment. In

support of the second motion for summary judgment, State Farm included Mr.

Calix’s deposition, in which he testified that Mario Kaki was responsible for

21-CA-555 15

attacking him and threatening his life. Any claims that the LLCs are liable based

on claims of negligent hiring, negligent training, negligent supervision, and

negligent retention stem from or are dependent on Mario Kaki’s actions.

Therefore, we find there is no coverage under the present insurance policies based

on allegations of negligence for damages resulting from Mario Kaki’s intentional

acts.

DECREE

For the foregoing reasons, we affirm the trial court’s judgments which

granted State Farm’s motion for partial summary judgment and motion for

summary judgment and dismissed all claims against State Farm.

AFFIRMED

21-CA-555 16

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
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21-CA-555
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