Trinity Universal Insurance Co. v. Darryl James Lyons

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-746

TRINITY UNIVERSAL INSURANCE COMPANY

VERSUS

DARRYL JAMES LYONS, SR., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2001-3646
HONORABLE WILFORD D. CARTER,
DISTRICT COURT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and
James T. Genovese, Judges.

AFFIRMED.

Kirk L. Landry
Brian W. Hightower
Keogh, Cox & Wilson, Ltd.
701 Main Street
Post Office Box 1151
Baton Rouge, Louisiana 70821-1151
(225) 383-3796
COUNSEL FOR PLAINTIFF/APPELLANT:
Trinity Universal Insurance Company

John R. Keogh
4605 Angelle Drive
Sulphur, Louisiana 70663-3938
(337) 626-8616
COUNSEL FOR PLAINTIFF/APPELLANT:
Trinity Universal Insurance Company

James L. Pate
Jason T. Reed
LaBorde & Neuner
Post Office Drawer 52828
Lafayette, Louisiana 70505-2828
(337) 237-7000
COUNSEL FOR DEFENDANT/APPELLEE:
City of Westlake

GENOVESE, JUDGE.

Following an incident of arson involving its insured, American Legion Post

# 370 (American Legion), Plaintiff, Trinity Universal Insurance Company (Trinity),

filed a subrogation claim against Defendant, the City of Westlake (City), to recoup

the amounts it paid to its insured. The City filed a motion for summary judgment on

the ground that it had no legal duty to prevent the act of arson. The trial court granted

the City’s motion for summary judgment and Trinity appeals. For the following

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The instant litigation was the subject of a previous appeal to this court, wherein

we summarized the facts as follows:

In 1999, the Westlake Fire Department instituted a program for
junior volunteer firefighters. These young volunteers received
essentially the same training that adult volunteer firefighters received.
Beginning in early March 2000, James [Lyons, Jr. (Lyons), a junior
volunteer firefighter with the City,] started three fires in Westlake, the
last being the fire at the American Legion. During that same time, he
stole payroll checks and gas cards from the Westlake Fire Department.
The record indicates that [Lyons] had been a volunteer for
approximately fifteen months when he set the fire at the American
Legion.

[Lyons’] identity as the arsonist came to light when Jarrod [sic]
Roy [(Jared)], his friend and co-volunteer, related his suspicions that
[Lyons] set the fire at the American Legion to the police during its
investigation of the fire. Jarrod [sic] had related his suspicions to
[Jacques Picou (Picou),] the assistant fire chief[,] before the fire. The
police questioned [Lyons], and he confessed that he started it. He also
confessed to starting the other two fires.

Trinity Universal Ins. Co. v. Lyons, 04-1494, p.1 (La.App. 3 Cir. 3/2/05), 896 So.2d

298, 299.

Following the fire, and in accordance with its subrogation rights set forth in the

fire insurance policy, Trinity filed suit against Lyons, his parents, and the City.

Summary judgment was later granted in favor of Trinity against Lyons and his parents

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on the issues of liability and damages. Thus, the claims which remained were those

asserted by Trinity against the City.

Trinity asserted liability against the City on three grounds: “1) the City had a

duty to conduct psychological testing on junior volunteer firefighters; 2) the City had

a duty to act on [Jared’s] suspicions when he related them to the assistant fire chief;

and 3) the City was vicariously liable for [Lyons’] arson under La.Civ.Code art.

2320.” Id. at 300. The City filed its first motion for summary judgment, which the

trial court granted, finding no liability under the first and third grounds set forth

above. The trial court also found there was not sufficient time for the City to have

taken action based upon the suspicions of Jared. On appeal, this court reversed the

trial court’s ruling, finding that “[t]here [was] not enough information in the record

to make this determination” and remanded the matter to the trial court “to determine

whether Jarrod’s [sic] previous suspicions[,] coupled with the information on July 25,

2000[,] warranted investigation by the City of Westlake before the American Legion

fire was set.” Id. at 302.

Subsequently, the City reurged its motion for summary judgment which was

again granted by the trial court. It is from this judgment that Trinity appeals. For the

following reasons, we affirm.

ISSUES

In its appellate brief, Trinity assigns six errors of the trial court, raising the

following issues:

I. DID THE TRIAL JUDGE COMMIT LEGAL ERROR IN
MISINTERPRETING THE DECISION OF THE THIRD CIRCUIT
COURT OF APPEAL?

II. DID THE TRIAL JUDGE COMMIT LEGAL ERROR IN
GRANTING DEFENDANTS’ [SIC] MOTION FOR SUMMARY
JUDGMENT WHEN A GENUINE ISSUE OF MATERIAL FACT
REMAINS AS TO THE TIME THE FIRE WAS STARTED?

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III. DID THE TRIAL JUDGE COMMIT LEGAL ERROR IN
GRANTING THE MOTION FOR SUMMARY JUDGMENT WHEN
THE STATEMENT OF UNCONTESTED FACTS INCLUDED WITH
DEFENDANTS’ [SIC] MOTION FOR SUMMARY JUDGMENT
INCLUDED FACTUAL MISREPRESENTATIONS?

IV. DID THE TRIAL JUDGE COMMIT LEGAL ERROR IN
UTILIZING AN INCORRECT LEGAL STANDARD FOR MOTIONS
FOR SUMMARY JUDGMENT?

V. DID THE TRIAL JUDGE COMMIT LEGAL ERROR IN
GRANTING THE MOTION FOR SUMMARY JUDGMENT WHEN
THE STATEMENT OF UNCONTESTED FACTS AND THE
AFFIDAVIT OF CHIEF MCCELLAND INCLUDED WITH
DEFENDANTS’ [SIC] BRIEF CONTAINED ERRORS?

VI. DID THE TRIAL JUDGE COMMIT LEGAL ERROR IN
RULING THAT THE CITY OF WESTLAKE DID NOT HAVE
SUFFICIENT TIME TO TAKE ACTION TO PREVENT JAMES
LYONS FROM COMMITTING ARSON?

Despite the issues set forth by Trinity, we are bound by the prior opinion and

final judgment of this court which limits our inquiry solely to the City’s “knowledge

of Jarrod’s [sic] suspicions and whether it could have investigated those suspicions

and prevented the fire at the American Legion.” Id. at 302.

LAW AND ARGUMENT

“Appellate courts review summary judgments de novo, using the same criteria

that govern the trial court’s consideration of whether summary judgment is

appropriate.” Richard v. Hall, 03-1488, p.4 (La. 4/23/04), 874 So.2d 131, 137 (citing

Goins v. Wal-Mart Stores, Inc., 01-1136 (La. 11/28/01), 800 So.2d 783). The

appellate court must determine whether “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to material fact, and that mover is entitled to judgment as

a matter of law.” La.Code Civ.P. art. 966(B).

In denying the prior summary judgment in these proceedings, this court

recognized that Jared’s statements seemed to indicate that he had told Assistant Fire

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Chief Picou of his suspicions prior to the night of July 25, 2000. “If in fact he did,

the City may have had time to conduct an investigation to determine whether his

suspicions were correct.” Trinity, 896 So.2d at 302. A review of the record now

before us clearly indicates that this fact is no longer at issue.

It was established in the prior proceeding that there had been a number of fires

occurring over a two-week period in the City of Westlake. On July 25, 2000, the

night of the fire at the American Legion, Jared spoke to Lyons. When parting, Lyons

commented to Jared that he would see him later. This statement aroused suspicion

in Jared that Lyons might be the individual responsible for starting the recent fires,

since it seemed to him that when Lyons would make such a statement, a fire did

actually occur that night. Therefore, when Jared got off work, sometime after 9:15

p.m., he informed Assistant Fire Chief Picou of his suspicions of Lyons’ recent

activity and the conversation between Lyons and him earlier that night. The fire at

the American Legion building began between 12:00 a.m. and 1:00 a.m.

Our review of the record reveals that there is no remaining question of fact

regarding the City’s knowledge, vel non, of Lyons’ involvement in the arsons prior

to the conversation between Jared and Assistant Fire Chief Picou the night of July

25, 2000. At no time prior to this conversation had Jared communicated to Assistant

Fire Chief Picou and/or Fire Chief McClelland any concerns regarding Lyons’

involvement in or with the recent fires in the City. Additionally, prior to the

conversation that evening, neither Fire Chief McClelland nor Assistant Fire Chief

Picou had any suspicion that Lyons had committed any acts of arson.

Although Trinity argues that genuine issues of material fact remain in dispute

because the above times were not established with certainty, we disagree. The

evidence establishes that the City’s first knowledge that Lyons might have been

responsible for any previous arsons, and that he might commit arson the night of July

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25, 2000, was when Jared made Assistant Chief Picou aware of his suspicions

sometime after 9:15 p.m. on July 25, 2000. The fact that there was no prior

knowledge on the part of the City was unrefuted. Therefore, we find no “error with

the trial court’s conclusion that this short period of time was insufficient for the City

to have acted.” Accordingly, the judgment of the trial court granting the City’s

motion for summary judgment is affirmed.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary

judgment in favor of the City of Westlake is affirmed.

Costs of this appeal are assessed against Plaintiff/Appellant, Trinity Universal

Insurance Company.

AFFIRMED.

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