Kevin James Mouton v. Allison Thomas

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-926

KEVIN JAMES MOUTON

VERSUS

ALLISON THOMAS, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20012482
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Glenn
B. Gremillion, Judges.

AFFIRMED.

John Powers Wolff, III
Tiffany N. Thornton
Christopher K. Jones
Nancy Brehm Gilbert
KEOGH, COX & WILSON, LTD.
P. O. Box 1151
Baton Rouge, LA 70821
Telephone: (225) 383-3796
COUNSEL FOR:
Defendant/Appellee - Scottsdale Insurance Company

Randall Scott Iles
P. O. Box 3385
Lafayette, LA 70502
Telephone: (337) 234-8800
COUNSEL FOR:
Defendant/Appellant - Allison Thomas and Thomas & Thomas, Inc.

Kevin Paul Tauzin
1228 Camelia Boulevard - Suite A
Lafayette, LA 70508
Telephone: (337) 233-9833
COUNSEL FOR:
Plaintiff/Appellee - Kevin James Mouton

Robert L. Boxie
In Proper Person
773 Boxie Road
Sunset, LA 70584
Telephone: (337) 662-5598

THIBODEAUX, Chief Judge.

Defendant-appellant, Allison Thomas DBA Big Al’s Hideaway,

(Thomas), appeals a summary judgment in favor of Thomas’ commercial lines

insurer, Defendant-appellee, Scottsdale Insurance Company (Scottsdale). Scottsdale

was dismissed from the pending personal injury action on the basis that its

commercial general liability policy’s assault and battery exclusion did not provide

coverage for the claim for damages filed by a patron who sustained injuries during

a brawl with another patron at Thomas’ nightclub. For the reasons stated below, we

affirm the ruling of the trial court.

I.

ISSUE

Is the act of striking a person in self-defense in a barroom brawl an act

of battery that is precluded from coverage by the assault and battery exclusion of

Scottsdale’s commercial general liability insurance policy?

II.

FACTUAL BACKGROUND

A brawl occurred at the nightclub, Big Al’s Hideaway Club, which is

owned by Thomas. The plaintiff, Kevin James Mouton (Mouton), filed suit against

the nightclub owner1 and the patron he was fighting, Robert L. Boxie (Boxie), for

injuries he allegedly sustained during that fight. Mouton alleged in his lawsuit that

Boxie struck him with a beer bottle in the face and that Boxie, along with the

nightclub owners, are responsible for his resulting injuries. Mouton’s cause of action

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The entity Thomas & Thomas, Inc., in which Allison Thomas is a shareholder, was also named as
a defendant in this action. The record is not clear as to this entity’s status in regard to ownership of Big Al’s
Hideaway.

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against Thomas is essentially based on the premise that he was negligent and/or

strictly liable as the premises owner because of the failure to provide adequate

security for the patrons.

A commercial general liability policy issued by Scottsdale was in effect

for the business owned by Thomas.2 Mouton, consequently, added Scottsdale as a

defendant in the action. In response to being sued, Scottsdale filed a motion for

summary judgment based on the assault and battery exclusion contained in the policy.

The motion stated that Scottsdale should be dismissed from the action because its

policy did not provide coverage for the damages arising out of the incident. Thomas

filed an opposition to the motion for summary judgment, arguing that the exclusion

did not apply because Boxie’s act may have occurred in self-defense. He argued that

this raised a genuine issue of material fact regarding whether coverage applied and,

therefore, summary judgment could not be properly granted at that time.

In support of its summary judgment motion, Scottsdale offered Boxie’s

deposition testimony and that of Keisha Alexander (Alexander), an employee of the

nightclub. Boxie’s testimony was that he struck Mouton with a bottle, in self-

defense, at a moment in time during the fight when he was being attacked by a

number of people. Alexander testified that she witnessed Boxie strike the first blow

of the fight, which occurred when he hit Mouton with the bottle. Scottsdale also

relied on Thomas’ own deposition testimony in which he stated his belief that Boxie

probably started the fight because Mouton had been dancing with Boxie’s wife earlier

that night. Scottsdale argued that this testimony constituted proof that Boxie

committed an assault and battery and argued that regardless of whether the act was

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Listed as insureds in the policy are “Big Al’s Hideaway” and “Al Thomas DBA.”

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in self-defense, which was questionable, the assault and battery exclusion still

applied.

After a hearing on the matter, the trial court found that there was no

genuine issue as to the material fact that Boxie committed an assault and battery,

damages for which are excluded under the terms of Scottsdale’s policy. The trial

court granted the motion for summary judgment, and Thomas filed this appeal.

III.

LAW AND ARGUMENT

Summary judgments are given a de novo review on appeal, which means

that this court shall review this matter applying the same standards as those applied

by the trial court initially. See State Farm Mut. Auto. Ins. Co. v. Landry, 96-331

(La.App. 3 Cir. 10/9/96), 688 So.2d 1125 (citing Schroeder v. Bd. of Supervisors of

La. State Univ., 591 So.2d 342 (La.1991)). Accordingly, we are mindful that

pursuant to La.Code Civ.P. art. 966, summary judgment should be granted as a matter

of law when the mover establishes with competent evidence, consisting of pleadings,

depositions, answers to interrogatories, admissions on file, and any affidavits, that

there is no genuine issue as to a material fact. Landry, 688 So.2d 1125; Proshee v.

Shree, Inc., 04-1145 (La.App. 3 Cir. 2/2/05), 893 So.2d 939.

The issue that was presented to the trial court and that is now before this

court is an insurance coverage question, requiring a determination of whether, as a

matter of law, the language of the policy provides coverage to Thomas under the facts

of this case. We have held that a “[s]ummary judgment declaring no coverage under

an insurance policy may only be rendered when there is no reasonable interpretation

of the policy which would provide coverage under the undisputed facts of the case.”

Landry, 688 So.2d at 1128; see also, Westerfield v. LaFleur, 493 So.2d 600

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(La.1986). This analysis requires, first, a review of the mover’s evidence presented

in support of the motion for summary judgment to determine if it sufficiently resolves

any issues of material fact. La.Code Civ.P. art. 967; see also, Landry, 688 So.2d

1125. If the evidence presented by the mover succeeds in doing so, then the court is

required to indulgently review any documents presented by the opponent that seek to

prove that there are still material facts at issue. La.Code Civ.P. art. 967; see also,

Landry, 688 So.2d 1125.

The policy exclusion at issue reads as follows:

ASSAULT AND BATTERY EXCLUSION

This insurance does not apply to Bodily Injury or Property
Damage arising from:

A. Assault and Battery committed by any insured, any
employee of any insured, or any other person;

B. The failure to suppress or prevent Assault and
Battery by any person in A. above; or

C. Any Assault and Battery resulting from or allegedly
related to the negligent hiring, supervision or
training of any employee of any insured.

The goal of contractual interpretation is to ascertain the intent of the

parties as reflected by the words in the policy in order to determine the extent of any

coverage provided. See Brown v. Yacht Club, 96-757 (La.App. 3 Cir. 12/26/96), 685

So.2d 670 (citing La. Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-911 (La.

1/14/94), 630 So.2d 759). The general rules of contractual interpretation, which we

are obliged to follow when interpreting insurance contracts, require us to give the

“generally prevailing meaning” to language used within a policy, unless the words

are terms of art or technical terms in a technical contract. La.Civ.Code art. 2047; See

Smith v. Matthews, 611 So.2d 1377 (La.1993). In addition, an insurance policy is to

be interpreted in a reasonable manner such that the interpretation is not strained in

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order to enlarge or restrict its provisions beyond what is reasonably contemplated in

the document. Carrier v. Reliance Ins. Co., 99-2573 (La. 4/11/00), 759 So.2d 37.

The policy is regarded as the law between the parties and if the wording of the policy

is lawful and clearly expresses the intent of the parties, the contract must be enforced

as written. Albritton v. Fireman’s Fund Ins. Co., 70 So.2d 111 (La.1953). Therefore,

lawful and unambiguous provisions in the insurance contract that limit liability must

be given effect. Id., see also, Dartez v. Atlas Assur. Co., 98-557 (La.App. 3 Cir.

10/28/98), 721 So.2d 109.

Taking these rules into consideration, we note at the outset that neither

term, assault nor battery, is defined in the policy. The supreme court has enunciated

the definition of the term “battery” as such:

A battery is “[a] harmful or offensive contact with a
person, resulting from an act intended to cause the plaintiff
to suffer such a contact . . . [.]” Caudle v. Betts, 512 So.2d
389, 391 (La.1987). The defendant’s intention need not be
malicious nor need it be an intention to inflict actual
damage. Id. It is sufficient if the defendant intends to
inflict either a harmful or offensive contact without the
other’s consent. Id.

Landry v. Bellanger, 02-1443, p. 6 (La. 5/20/03), 851 So.2d 943, 949. The legislature

has defined “battery,” in part, as “the intentional use of force or violence upon the

person of another . . . .” La.R.S. 14:33. “Assault” is defined statutorily as well as “an

attempt to commit a battery, or the intentional placing of another in reasonable

apprehension of receiving a battery.” La.R.S. 14:36.

Based on the evidence presented in the record, it is undisputed that Boxie

struck Mouton in the face with a bottle during a brawl. Striking another person in the

face with a bottle constitutes an assault and battery. See Proshee v. Shree, Inc., 04-

1145 (La.App. 3 Cir. 2/2/05), 893 So.2d 939; Guidry v. Deny, 95-2115, 95-2604

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(La.App. 4 Cir. 3/14/96), 671 So.2d 979; Nastasia v. Sylvan Inc., 617 So.2d 128

(La.App. 5 Cir. 1993).

We now address the issue of whether Boxie’s act was in self-defense

and, if so, whether such an act is an exception to the assault and battery exclusion.

At the outset, we find that the policy language unambiguously excludes acts of assault

and battery from coverage and contains no exceptions, express or otherwise, for acts

committed in self-defense. See Proshee, 893 So.2d 939. “An ambiguity in an

insurance policy is said to exist when the pertinent provision can be reasonably

construed in two different ways.” Id. at 942 (citing McCarthy v. Berman, 95-1456

(La. 2/28/96), 668 So.2d 721). “The question is what would a reasonable person in

the position of the insured have understood [the pertinent provision] to mean.” Id.

(citing S. Cent. Bell Tel. Co. v. Ka-Jon Food Stores of La., Inc., 93-2926 (La.

5/24/94), 644 So.2d 357). Having applied these rules, we find that the words of the

insurance contract, in this case, are clear and explicit and because they do not lead to

absurd consequences, no further interpretation may be made by this court in search

of the parties’ intent. See La.Civ.Code art. 2046. Moreover, we adhere to the

principle that has long been recognized by this state’s courts, which is that when

language in a contract is clear and unambiguous, the letter of that provision should

not be disregarded under pretext of pursuing its spirit. See Maloney v. Oak Builders,

Inc., 235 So.2d 386 (La.1970).

The assertion of self-defense as a material issue in the determination of

whether the exclusion applies in this case is misplaced. While self-defense is a valid

defense to a battery, in that it provides justification for the act, the assertion of the

claim of self-defense does not mean that a tort, i.e., a battery, as is alleged in this case,

did not occur. Landry, 851 So.2d 943. For instance, in a civil context, the self-

defense claim is an acceptable mechanism to assert in an effort to mitigate one’s fault,
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and in a criminal context, it may be asserted to avoid the imposition of criminal

sanctions for the intentional tort that has occurred. Id. However, as this court has

recognized before, such “‘justification’ defenses are not based on the nonexistence

of any essential element of the offense, but rather on the circumstances which

make the [defendant’s] conduct excusable on policy grounds . . . .” State v.

Sedlock, 04-564, p. 4 (La.App. 3 Cir. 9/29/04), 882 So.2d 1278, 1281, writ denied,

04-2710 (La. 2/25/05), 894 So.2d 1131 (emphasis added). We conclude, therefore,

that under the facts of this case, whether Boxie committed the act in self-defense is

not a genuine issue of fact that is material to the question of whether an assault and

battery occurred, or to the consequential question of whether Scottsdale’s assault and

battery exclusion applies. See Hewitt v. Allstate Ins. Co., 98-221 (La.App. 4 Cir.

1/27/99), 726 So.2d 1120.

For these reasons, we find that there is no genuine issue as to the

material fact that an assault and battery was committed upon Mouton by Boxie.

There being no genuine issue remaining as to this fact, the assault and battery

exclusion applies and excludes coverage for the claim for damages made in this case.

Therefore, the judgment of the trial court granting Scottsdale’s motion for summary

judgment is affirmed.

IV.

CONCLUSION

The judgment of the trial court is affirmed, and all costs of this appeal

are assessed to Defendant-appellant, Allison Thomas DBA Big Al’s Hideaway.

AFFIRMED.

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