Barbara Rudd v. Bruce Carpenter and Ondre Carpenter, Husband and Wife, and Their Liability Insurer, American National Insurance Company

Judgment rendered January 13, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,675-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

BARBARA RUDD Plaintiff-Appellee

versus

BRUCE CARPENTER AND Defendants-Appellants
ONDRE CARPENTER,
HUSBAND AND WIFE, AND
THEIR LIABILITY INSURER,
AMERICAN NATIONAL
INSURANCE COMPANY

*****

Appealed from the
Eighth Judicial District Court for the
Parish of Winn, Louisiana
Trial Court No. 45648

Honorable Jacque Derr, Judge

*****

DAVENPORT, FILES & KELLY, LLP Counsel for Defendants-
By: M. Shane Craighead Appellants, ANPAC
Grant M. Tolbird Louisiana Ins. Co. and
Agent Michelle Coleman

SOOTER & ASSOCIATES Counsel for Plaintiff-
By: Victor H. Sooter Appellee, Barbara Rudd

FINE LEGAL SERVICES, L.L.C. Counsel for Defendants-
By: Jeremy C. Cedars Appellees (Cross Claim
Plaintiffs), Bruce and
Ondre Carpenter

VOORHIES & LABBE´ Counsel for Defendants-
By: Cyd Sheree Page Appellees, (Liability
Claim), Bruce and Ondre
Carpenter

*****

Before STEPHENS, BLEICH (Pro Tempore), and BODDIE (Pro Tempore), JJ.

BLEICH, J. (Pro Tempore)

The defendant, ANPAC Louisiana Insurance Company (“ANPAC”),

appeals the trial court’s ruling granting a motion for partial summary

judgment in favor of the plaintiff, Barbara Rudd. The trial court determined

that the ANPAC homeowners policy provision limiting the insurer’s liability

to $10,000 for injury caused by a dog not listed in the policy is

unenforceable against the insured defendants, Ondrea and Bruce Carpenter.

For the following reasons, we reverse in part, affirm in part and remand for

further proceedings.

FACTS

From 2003 through July 2016, Ondrea and Bruce Carpenter (“the

Carpenters”) resided in a house on Highway 84 in Winnfield. During that

time, their homeowners insurance was provided by a policy issued by

ANPAC. In July 2016, the Carpenters sold the house and bought a home on

Sylvan Meadows Loop in Winnfield. Before the closing date, Bruce

telephoned the Carpenters’ insurance agent, Michelle Coleman, to obtain a

price quote for homeowners insurance for their new home. Bruce later

stated that he told Coleman at the time that the Carpenters would move into

the new house after fencing for their dog was completed. The Carpenters

had owned the dog, named Skylar, since 2012. On July 18, 2016, Coleman

printed out the completed insurance application. The Carpenters were

existing clients, so Coleman used information from earlier policy years to

answer the questions on the application, which she mailed to Bruce for him

to sign and return with a check for the premium. Coleman’s files included

copies of the application, signed “Bruce & Ondrea Carpenter,” and the

premium check. In March 2017, the Carpenters received by mail a copy of

the homeowners insurance policy for their new house.

The ANPAC policy contains a “Liability Exposures Declarations

Page” stating that the policy “will be reduced to a maximum of $10,000

limit on liability coverage for dogs and equine animals that are not listed on

this page.” Under Section II, “Liability Coverages,” the ANPAC policy

provides that the “maximum limit of liability we will pay per occurrence for

bodily injury or property damage caused by dogs . . . is $10,000[.]” No dog

was listed on the declarations page of the ANPAC policy.

On April 21, 2017, the Carpenters’ dog attacked Barbara Rudd in her

yard, biting her face and right leg. As a result of this attack, Rudd suffered

significant injuries which required emergency medical treatment and several

surgical procedures. Rudd’s past medical expenses exceed $150,000.

Subsequently, the plaintiff, Barbara Rudd, filed a petition for damages

against the defendants, Bruce and Ondrea Carpenter and ANPAC. After

discovery, plaintiff filed a motion for partial summary judgment alleging

that the Carpenters were strictly liable for her injuries and that the ANPAC

policy’s liability limitation for damages caused by dogs was unenforceable.

In response, ANPAC filed a motion for summary judgment raising as a

defense the “drop-down” limitation of liability provision in the insurance

policy.

After a hearing, the trial court determined that the policy provision

limiting the insurer’s liability for damage caused by a dog not listed in the

policy was unenforceable. The trial court rendered judgment granting the

plaintiff’s motion for partial summary judgment regarding the liability

limitation and exotic animal provisions of the insurance policy and denying
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ANPAC’s motion. ANPAC filed a writ application seeking review of the

trial court’s denial of its motion for summary judgment. This court

converted ANPAC’s writ application to a motion for appeal. ANPAC

appeals the judgment.

DISCUSSION

ANPAC contends the trial court erred in granting the plaintiff’s

motion for partial summary judgment. ANPAC argues that the trial court

improperly weighed conflicting evidence to find that the Carpenters had

informed the insurance agent that they owned a dog.

Appellate courts review summary judgments de novo, using the same

criteria that govern the trial court’s consideration of whether summary

judgment is appropriate. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977

So.2d 880; Argonaut Great Central Ins. Co. v. Hammett, 44,308 (La. App. 2

Cir. 6/3/09), 13 So.3d 1209, writ denied, 2009-1491 (La. 10/2/09), 18 So.3d

122. Summary judgment shall be rendered if the motion, memorandum and

supporting documents show 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 fact is “material” if it potentially ensures or precludes

recovery, affects a litigant’s ultimate success or determines the outcome of

the legal dispute. Van v. Ferrell, 45,977 (La. App. 2 Cir. 3/2/11), 58 So.3d

522. In ruling on a motion for summary judgment, the district court’s role is

not to evaluate the weight of the evidence or to determine the truth of the

matter, but instead to determine whether there is a genuine issue of triable

fact. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764.

An insurance policy is a contract between the parties and should be

construed using the general rules of interpreting contracts set forth in the
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Civil Code. Sims v. Mulhearn Funeral Home, Inc., 2007-0054 (La.

5/22/07), 956 So.2d 583. The responsibility of the judiciary in interpreting

insurance contracts is to determine the parties’ common intent by examining

the words of the contract itself. La. C.C. arts. 2045 and 2046; Sims, supra.

Words and phrases in an insurance policy are to be construed using their

plain, ordinary and generally prevailing meaning, unless the words have

acquired a technical meaning. La. C.C. art. 2047; Sims, supra.; Ilgenfritz v.

Canopius U.S. Insurance, 51,530 (La. App. 2 Cir. 8/9/17), 243 So.3d 1109.

Insurers are entitled to limit coverage as long as the limitations do not

conflict with the statutory provisions or public policy. Ilgenfritz, supra. An

insurer has the burden of proving that a loss comes within a policy

exclusion. Ilgenfritz, supra.

In the present case, the parties submitted for summary judgment the

depositions of Bruce Carpenter, Ondrea Carpenter and Michelle Coleman.

In his deposition, Bruce testified that his interaction with Coleman was

always by telephone and that he did not recall filling out the insurance

application for the new house. Bruce stated that he did not remember seeing

the application before the incident and he did not sign the form, but he did

not deny that Coleman had mailed the form to him to sign and return. Bruce

testified that he spoke with Coleman about insurance for the new house and

told her they would move after a fence was put up so he could move the dog.

Bruce stated that he “assumed” Coleman knew the Carpenters owned a dog

at the time of the move because of their prior conversations with the agent

indicating that they owned a dog. Bruce testified that he received the

homeowners policy in the mail after moving into the new house, but he did

not read the document.
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Ondrea Carpenter testified in her deposition that before her back

problems in 2015, she had taken care of insurance matters for the house.

Ondrea stated that she did not know if she had seen the 2016 insurance

application or if she had signed the form. However, Ondrea acknowledged

that she “could very well” have signed “Bruce and Ondrea Carpenter” on the

form. Ondrea testified that she did not know where the information on the

application came from and if asked about having a dog, she would not have

said no. Ondrea stated that she did not recall specifically telling Coleman

about the dog other than one conversation on the phone when she was

“griping” to the agent about cooking 10 pounds of chicken to put in the

freezer for the dog. Ondrea testified that she did not recall the date of that

conversation.

In her deposition, Michelle Coleman testified that she was working as

an insurance agent with several hundred clients and had been an agent for

ANPAC since 2006. Coleman stated that she had spoken with Bruce by

telephone to give him the price quote for homeowners insurance coverage

for the new house. Coleman testified that on July 18, 2016, she printed out

the insurance application from her computer and mailed the form to Bruce

for him to sign and return with a check for the insurance premium. Coleman

stated that she did not recall specifically asking Bruce if he owned a dog

when she was preparing the insurance application. Coleman explained that

because the Carpenters were existing clients, the insurer’s quoting system

already contained information they had provided in previous years and she

had selected the option to use all of their existing information to complete

the 2016 insurance application. Coleman testified that she did not remember

whether or not the Carpenters had told her that they owned a dog. Coleman
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stated that she thought she would remember being told by the Carpenters

that they were freezing 10 pounds of chicken for their dog, but she did not

recall such a conversation. Coleman testified that the liability limitation

regarding dogs took effect in May 2015 and that the Carpenters would have

received notice of that change at the time of the 2016 renewal of their

homeowners policy for the Highway 84 property.

The above testimony demonstrates that there is a factual dispute as to

whether Coleman was aware that the Carpenters owned a dog based on their

comments to the agent at various times before their move in 2016, under

circumstances when they were not seeking homeowners insurance. Thus,

the trial court erred in finding that the issue of the agent’s knowledge of the

dog was “unquestioned.” To make such a finding, the trial court necessarily

assessed the credibility of the witness testimony and such weighing of the

evidence is not appropriate for the purpose of summary judgment analysis.

In their appellate briefs, Rudd and the Carpenters argue that the trial

court correctly granted summary judgment finding the liability limitation

was not enforceable because ANPAC did not produce evidence that the

Carpenters had the intent to deceive by failing to disclose their dog on the

insurance application. The appellees contend Coleman made an error in

completing the insurance application and that her mistake is imputed to

ANPAC and is not binding on the Carpenters.

No misrepresentation or warranty made in the negotiation of an

insurance contract, by the insured or in his behalf, shall be deemed material

or defeat or void the contract unless the misrepresentation is made with the

intent to deceive. La. R.S. 22:860 (formerly R.S. 22:619). To deny

coverage under Section 860, the insurer must show that the applicant’s
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statements were false, made with the intent to deceive and that the

misrepresentation materially affected the risk assumed by the insurer. Jones

v. United Sav. Life Ins. Co., 486 So.2d 1110 (La. App. 2 Cir. 1986).

An insurance agent, in procuring and reducing to writing an insurance

application, acts as the agent of the insurer. When an insurance agent fills

out an application for insurance, his acts, representations and mistakes, if

any, are those of the insurance company so that if the agent by mistake or

omission inserts untrue answers to questions in the application, such

representations bind the insurer and not the insured, provided the insured has

no actual or implied knowledge thereof. Harris v. Guaranty Life Ins. Co.,

75 So.2d 227 (La. 1954); Miller v. Preferred Life Ins. Co., 107 So.2d 323

(La. App. 2 Cir. 1958).

In this case, the record contains testimony indicating that the

Carpenters received the insurance application incorrectly stating that they

did not own a dog, that they received a copy of the homeowners insurance

policy stating the limitation of liability for injury caused by a dog that was

not listed in the policy, and that they mentioned the dog in two telephone

conversations with Coleman.

Based on the evidence presented, genuine issues of fact exist as to

whether the ANPAC insurance agent was aware of the insured’s dog,

whether the insured was reasonably ignorant of the incorrect information

entered on the insurance application, and whether the insured should have

known that the dog had been omitted from the insurance policy in light of

his opportunity to review the 3-page insurance application and the

homeowners policy provisions regarding the liability limitation.

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The issue before the trial court is to determine which party in this

situation is at fault for failing to have the dog listed in the insurance policy.

In making such a fact-intensive determination, the trial court will be required

to assess the credibility of the witnesses, weigh the evidence and consider

the applicable law. Thus, the trial court erred in granting partial summary

judgment in favor of Rudd with respect to the enforceability of the liability

limitation. For the same reason, the trial court did not err in denying

ANPAC’s motion for summary judgment.

CONCLUSION

For the foregoing reasons, that portion of the judgment granting the

plaintiff’s motion for partial summary judgment regarding the enforceability

of the liability limitation is reversed. That portion of the judgment denying

ANPAC’s motion for summary judgment or declaratory judgment is

affirmed. This matter is remanded for further proceedings. Costs of this

appeal are assessed one-half to the appellee, Barbara Rudd, and one-half to

the appellant, ANPAC.

REVERSED IN PART; AFFIRMED IN PART; REMANDED

FOR FURTHER PROCEEDINGS.

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