Rebecca Ann Hardie v. Professional Physical Rehabilitation Hospital, LLC, Etc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-445

REBECCA ANN HARDIE, ET AL.

VERSUS

PROFESSIONAL PHYSICAL REHABILITATION HOSPITAL, LLC, ETC.

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 35,948
HONORABLE KATHY A. JOHNSON, DISTRICT JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Jimmie C. Peters, Glenn B. Gremillion, and Billy H. Ezell,
Judges.

AFFIRMED.

Joseph T. Dalrymple
Rivers, Beck, Dalrymple, & Ledet
P. O. Drawer 12850
Alexandria, LA 71315-2850
(318) 445-6581
Counsel for Plaintiffs/Appellees
Rebecca Ann Hardie
Julie Renee Cotton
Allen Ray Parker
Don Mathew Parker

Russell Purvis, Jr.
Smith, Taliaferro, Seibert
P.O. Box 277
Jonesville, LA 71343
(318) 339-8526
Counsel for Plaintiffs/Appellees
Rebecca Ann Hardie
Julie Renee Cotton
Allen Ray Parker
Don Mathew Parker

Edward E. Rundell
Gold, Weems, Bruser, et al
P. O. Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
Counsel for Defendant/Appellant
Professional Physical Rehabilitation Hospital

Madeline Lee
Bolen, Parker, & Brenner, LTD
P.O. Box 11590
Alexandria, LA 71315-1590
(318) 445-8236
Counsel for: Defendant Appellee
Kraig Allen Ward, M.D.

GREMILLION, Judge.

In this case, the defendant-appellant, Professional Physical

Rehabilitation Hospital, L.L.C., appeals the judgment in favor of the plaintiff,

Rebecca Ann Hardie, on the issue of the available limits of Professional Rehab’s

insurance policy issued by CNA. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Hardie and her three siblings brought suit following the death of their

mother, Emma Parker, due to the negligence of Professional Rehab. Parker was

admitted to Professional Rehab on January 20, 1998, and died on January 27, 1998,

of a heart attack at a nearby hospital. Hardie filed a motion for summary judgment

on the issue of insurance coverage and the applicable liability limit she and her

siblings each had under the insurance policy urging that the $100,000 limit was

applicable to each of their claims, subject to the collective limit of the CNA policy

totaling $300,000.

Following a hearing, the trial court granted summary judgment in favor

of Hardie finding that “the policy issued to defendants provides coverage so that each

claim by each plaintiff is subject to the $100,000.00 ‘each person limit’ and that all

plaintiffs [sic] claims are subject to the ‘total limit’ of $300,000.00.”

Professional Rehab now appeals.

ISSUES

Professional Rehab assigns as error:

1. The trial court’s finding that individual mental anguish and
loss of consortium claims of each wrongful death/survival
action plaintiff were subject to the $100,000 “each person
limit” of the CNA policy and that Hardie’s claims were

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subject to the policy’s $300,000 “total limit.”

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v.

Collins, 98-2822 (La. 7/7/99), 739 So.2d 191. Thus, the appellate court asks the same

questions the trial court asks to determine whether summary judgment is appropriate.

Id. This inquiry seeks to determine whether any genuine issues of material fact exist

and whether the movant is entitled to judgment as a matter of law. La.Civ.Code art.

966(B)(C). This means that judgment should be rendered in favor of the movant if

the pleadings, depositions, answers to interrogatories, admissions on file, and

affidavits show a lack of factual support for an essential element of the opposing

party’s claim. If the opposing party cannot produce any evidence to suggest that he

will be able to meet his evidentiary burden at trial, no genuine issues of material fact

exist. Id.

Interpretation of an insurance policy is a question of law, and we have

authority to construe the provisions of the policy in order to resolve questions of

coverage. Stoute v. Long, 98-683 (La.App. 3 Cir. 12/9/98), 722 So.2d 102.

“Words susceptible of different meanings must be interpreted as having

the meaning that best conforms to the object of the contract.” La.Civ.Code art. 2048.

“Each provision in a contract must be interpreted in light of the other provisions so

that each is given the meaning suggested by the contract as a whole.” La.Civ.Code

art. 2050. “A contract executed in a standard form of one party must be interpreted,

in case of doubt, in favor of the other party.” La.Civ.Code art. 2056. If an

exclusionary clause is deemed ambiguous, an insurance policy must be liberally

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construed in favor of coverage; provisions susceptible of different meanings must be

interpreted to render coverage effective rather than ineffective. La.Civ.Code art.

2049; see Capital Bank & Trust Co. v. Equitable Life Assurance Soc'y, 542 So.2d

494 (La.1989). If more than one reasonable view of the exclusion proviso exists,

“any ambiguity must be construed against the insurance company and in favor of the

reasonable construction that affords coverage.” RPM Pizza, Inc. v. Auto. Cas. Ins.

Co., 601 So.2d 1366, 1369 (La.1992).

The issue in this case is whether the insurance policy provided $100,000

worth of coverage (with a maximum of $300,000 for all claims) to each plaintiff for

wrongful death and/or Lejuene bystander claims under La.Civ.Code art. 2315.6.

Professional Rehab discusses at length Hardie’s failure to prove a Lejeune claim.

However, that issue is not before us. The summary judgment was granted solely on

the applicable limits of the insurance policy. The merits of the claims are, thus,

reserved for trial.

The trial court held:

The court finds that the language contained in the policy issued
to defendant is subject to more than one reasonable interpretation. The
policy does not state whether the $100,000.00 “each person limit”
applies to all claims by all persons as the result of injury or death of
another person. Also, the policy does not specify whether its
$100,000.00 limitation applies to all claims, of whatever type, by each
person who claims bodily injury or to all claims by all persons due to
injury or death of another person.

The court finds there is no material issue of fact and that mover
is entitled to judgment as a matter of law. The policy issued to
defendants provides coverage so that each claim by each plaintiff is
subject to the $100,000.00 “each person limit” and that all plaintiff
claims are subject to the “total limit” of $300,000.00.

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THE POLICY

CNA issued Professional Rehab a policy with a Professional Liability

Insuring Agreement and a General Liability Insuring Agreement. The Professional

Liability portion of the policy in the “Limits of Your Coverage” section provides for

$100,000 “each person limit” and a $300,000 “total limit.” The CNA insurance

policy states (Emphasis added):

Limits of Your Coverage

The Limits of Your Coverage shown on the Declaration Page apply as
follows:

The “each person limit” is the most we shall pay under the Insuring
Agreement for all claims resulting from the injury or death of any one
person, including any claims for loss of services and/or for mental
distress.

The “total limit” is the most we shall pay for all claims covered under
the insuring Agreement. The “total limit” applies regardless of the
number of person [sic] bringing claims, and regardless of the number of
claims brought under the Insuring Agreement.

The term “injury” is not defined in the Professional Liability portion of the policy.

However, in the General Liability portion of the policy in which CNA agrees to “pay

those sums that those covered become legally obligated to pay as damages because

of bodily injury,” the term “bodily injury” is defined as “bodily injury, sickness, or

disease sustained by a person, including death.”

Hardie argues that the broader “injury” in the Professional Liability

portion of the policy, since not defined, includes any type of injury including those

injuries one suffers as part of a wrongful death claim, as well as the those injuries

which arise pursuant to a Lejeune claim. Professional Rehab, on the other hand,

argues that the word “injury” in the Professional Liability portion of the agreement

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is subject to the definition of “bodily injury” as defined in the general liability portion

of the policy. We agree with Hardie. Following the normal rules pertaining to the

construction and interpretation of insurance contracts, we find that the word “injury”

covers any injury recognized by the law. The words of the policy are clear and do not

lead to absurd consequences. CNA agrees to pay the “each person limit” for all

claims resulting from injury. Undoubtedly, a wrongful death claim is the petitioner’s

action for the injuries he/she suffers upon the death of a loved one. CNA could have

used the term “bodily injury” but chose not to do so. It further could have limited its

coverage by modifying its language in numerous ways. As it reads now however, an

injured person, such as a survivor in a wrongful death claim, is covered under the

“each person limit” for all claims. The same result is reached when addressing

whether an Article 2315.6 claim is covered. A Lejeune bystander claim arises from

the mental and emotional injuries suffered by the plaintiff from viewing the negligent

treatment of the primary victim. As such, the plaintiff suffers injuries which are

compensable under the law. Thus, the individual is covered under the policy for his

injury.

Both parties cite several Louisiana Supreme Court cases in support of

their position. In Crabtree v. State Farm Insurance Co., 93-0509 (La. 2/28/94), 632

So.2d 736, Mrs. Crabtree, who was following behind her husband in a separate

vehicle, witnessed him being struck by a vehicle as he operated his motorcycle.

When she approached him she found that his leg was almost completely severed from

the knee down. The Crabtrees argued that the wife’s Lejeune claim was a separate

“bodily injury,” thus, entitling her to her own per person limit, subject to the per

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accident aggregate. State Farm argued that Mrs. Crabtree’s claim was “derivative”

and, therefore, subject to the singly policy limit attributable to Mr. Crabtree. In the

alternative, State Farm argued that mental anguish did not qualify as “bodily injury.”

The section in the State Farm policy pertaining to the limits of liability stated:

The amount of bodily injury liability coverage is shown on the
declarations page under “Limits of Liability—Coverage A—Bodily
Injury, Each Person, Each Accident”. Under “Each Person is the amount
of coverage [$25,000] for all damages due to bodily injury to one
person. “Bodily Injury to one person” includes all injury and damages
to others resulting from this bodily injury. Under “Each Accident” is the
total amount of coverage [$50,000], subject to the amount shown under
“Each Person”, for all damages due to bodily injury to two or more
persons in the same accident.

Id. at 739.

The supreme court discussed several court of appeal decisions finding

that loss of consortium claims are derivative and, therefore, subject to the per person

limits. However, the supreme court found that it was unnecessary to determine

whether a Lejeune claim is derivative, instead finding that, pursuant to the policy

provisions, even if the claim “derived” or “resulted from” her husband’s injuries, it

constituted a “bodily injury” within the definition of the policy. It further found that

construing the policy as a whole, the terms “bodily injury to one person” did not

encompass Mrs. Crabtree’s claim, therefore, it was not subject to the single person

policy limit.

The supreme court then discussed whether, under this particular policy,

mental anguish fell within the definition of “bodily injury.” The supreme court

emphasized that despite the holdings in other cases, they “do not provide the final

word on how this policy should be interpreted.” Id. at 743. The supreme court then

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found that the definition of “bodily injury” in the policy was ambiguous and that the

drafters of the policy could have easily restricted its definition to only external

physical injuries.

In the instant case, we find that the word “injury” easily includes both

mental and physical injuries. Webster’s Collegiate Dictionary 644 (11th ed. 2003),

defines injury as “hurt, damage, or loss sustained,” which easily encompasses both

wrongful death and Lejeune claims. In following the supreme court’s holding in

Crabtree, we conclude that the policy drafters could have easily limited its coverage

by defining “injury” and limiting its scope to only physical external injuries.

In Ferrell v. Fireman’s Fund Insurance Co., 96-3028 (La. 7/1/97), 696

So.2d 569, the Ferrells were injured in a multi-vehicle accident. Mrs. Ferrell sought

coverage for her loss of consortium claim pursuant to the per accident bodily injury

limits. The issue was whether she was covered separately out of the per accident

bodily injury limits for her own “bodily injury” or whether her loss of consortium

claim was derivative of her husband’s injuries and, therefore, must be satisfied out

of the per person limits. While the supreme court found that loss of consortium

claims are derivative of the primary victim’s injuries as a matter of law, they also

stated:

[B]ecause an insurance policy is a contract between the parties, and the
parties are free to contract regarding the extent of coverage contained
therein, reference must be made to the language of the policy to
determine the extent of coverage.

Id. at 576.

However, the supreme court went on to say:

Upon examination of the language of the policy, we hold that

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damages for loss of consortium are covered under the policy provision
providing coverage for “damages for bodily injury for which any
covered person becomes legally responsible because of an auto
accident.” . . . . Unlike Crabtree, however, where we determined that
mental anguish constituted a separate “bodily injury”, we do not believe
that loss of consortium is covered as a separate bodily injury under the
per accident bodily injury limits of the policy. Coverage for loss of
consortium exists solely under the per person bodily injury limits of the
policy because loss of consortium is derivative of the primary victims
[sic] injuries and not a separate bodily injury.

Id.

We find the language in this policy more closely analogous to the policy

in Crabtree. Moreover, we find the issue of whether the wrongful death claim

“derives” from the primary victim’s injuries is irrelevant. The insurance company is

in a superior position to clarify the meanings of its policy and could have easily

excluded wrongful death claims from being covered individually. On the contrary,

the plain language infers that all claims for injury, whether derivative or not, are

covered. Additionally, the supreme court’s decisions appear to be somewhat

inconsistent regarding the “derivative” nature of either a wrongful death or Lejeune

claim. Both causes of action arise only after an injury to another person. However,

the wrongful death claim has been classified as “derivative,” (as a matter of law)

whereas the loss of consortium claim is not. In another case, Walls v. American

Optical Corp., 98-0455, p. 15 (La. 9/8/99), 740 So.2d 1262, 1274, the supreme court

again addressed the issue of whether a wrongful death claim is derivative, stating:

We do not consider the wrongful death action to be a derivative
cause of action. Rather the wrongful death action is an independent and
distinct action that arises even in the absence of a viable personal injury
action by the direct tort victim and compensates the beneficiaries for
their own individual injury arising out of the victims death.

Nevertheless, the supreme court has emphasized that coverage

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determinations should primarily be based on the individual policy provisions.1 We

find that most persuasive, and for the aforementioned reasons, find this particular

policy provides $100,000 per person limits for both wrongful death and/or Lejeune

claims up to an aggregate of $300,000 for all claims.

CONCLUSION

The trial court’s judgment granting summary judgment in favor of the

plaintiff-appellee, Rebecca Ann Hardie, is affirmed. All costs of this appeal are

assessed against the defendant-appellant, Professional Physical Rehabilitation

Hospital, L.L.C.

AFFIRMED.

1
In Crabtree, 632 So.2d at 740, the court stated: “Because our decision must rest solely
on the terms of the insurance contract between the parties.”

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