Naomi Williams v. Arista Andrus

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-239

NAOMI WILLIAMS

VERSUS

ARISTA ANDRUS, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20086308
HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Phyllis M. Keaty, Judges.

AFFIRMED.

Harold D. Register, Jr.
Post Office Box 80214
Lafayette, LA 70598-0214
(337) 981-6644
COUNSEL FOR PLAINTIFF/APPELLANT:
Naomi Williams

Gerald A. Melchiode
Mary E. Lorenz
Galloway, Johnson, Tompkins, Burr & Smith
701 Poydras Street, Suite 4040
New Orleans, LA 70139
(504) 525-6802
COUNSEL FOR DEFENDANT/APPELLEE:
Markel International Insurance Company, LTD

AMY, Judge.

After an altercation, the plaintiff’s husband was shot and killed at a bar. The

plaintiff subsequently filed suit against the alleged gunman, and his accomplice,

the bar, and the owners and operators of the bar. The bar’s insurance company

intervened and filed a motion for summary judgment, contending there was no

coverage under its policy because of its ―assault and battery‖ exclusion and/or

―firearms‖ exclusion. The trial court granted the motion and entered judgment

declaring that there was no coverage under the policy and dismissing all claims

against the insurer. The plaintiff appeals, asserting that the trial court erred in

granting the motion for summary judgment. For the following reasons, we affirm.

We grant no relief as to the intervenor’s requests for dismissal and sanctions.

Factual and Procedural Background

According to allegations made in the petition, the plaintiff, Naomi Williams,

and her husband, Treva Williams, were patrons of the Quality Lounge in Carencro,

Louisiana. While at the bar, Mr. Williams and Briceton Gallien were allegedly

involved in a ―huge fight.‖ The plaintiff alleges that, after the altercation, the

management of the Quality Lounge escorted Gallien and several other patrons

from the bar, but did not call the police. According to the plaintiff, there was no

security at the bar. The petition indicates that, accompanied by Jarvis Angelle,

Gallien returned to the bar sometime later that evening. Gallien allegedly pointed

at Mr. Williams and shouted, ―[T]here he is.‖ The plaintiff alleges that Angelle

shot Mr. Williams in the chest; Mr. Williams was pronounced dead later that

evening. The record indicates that Gallien and Angelle were subsequently charged

criminally with second degree murder in connection with the shooting.

Mrs. Williams, individually and on behalf of her two minor children, filed

this suit against Gallien and Angelle, the Quality Lounge, and its owners and

operators. Markel International Insurance Company, Ltd. filed a petition for

intervention, asserting that it had issued a commercial general liability policy to the

Quality Lounge and that there was no coverage under the policy.

Markel subsequently filed a motion for summary judgment, contending that

there was no coverage under the policy due to an ―assault and battery‖ exclusion

and a ―firearms‖ exclusion contained in the policy. After a hearing, attended only

by the attorney for Markel, the trial court granted the motion and entered judgment

pronouncing that there was no coverage under the policy and dismissing all claims

against Markel.1

The plaintiff appeals, asserting that ―[t]he trial court erroneously concluded

there was no genuine issue of material fact as to the ambiguity of an insurance

policy that excludes coverage for assault and battery and incidents committed with

a firearm, but fails to exclude coverage for murder.‖

Markel, in brief, urges this court to dismiss the appeal based on the

plaintiff’s failure to timely pay the costs of appeal and seeks sanctions for the

plaintiff’s alleged failure to serve the intervenor with a copy of its appellate brief.

Discussion

Louisiana Code of Civil Procedure Article 966 addresses motions for

summary judgment. It states, in relevant part, that ―[t]he judgment sought shall be

rendered forthwith if 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 the mover is entitled to judgment as a

matter of law.‖ La.Code Civ.P. art. 966(B). Summary judgment is favored and is

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The trial court’s judgment, signed August 30, 2010, states that the trial court ―finds that
there is no coverage under the commercial general liability policy, number GGAGL 3373, issued
by Markel International Insurance Company, Ltd. to Theresa Dean d/b/a Quality Lounge for
Plaintiff’s claims as a matter of law and that all claims against Markel International Insurance
Company, Ltd. are dismissed, with prejudice, at Plaintiff’s cost.‖
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―designed to secure the just, speedy, and inexpensive determination‖ of civil

actions. La.Code Civ.P. art. 966(A)(2). Summary judgment is also an appropriate

procedure for determining certain insurance coverage issues. Sensebe v. Canal

Indem. Co., 10-703 (La. 1/28/11), 58 So.3d 441 (citing Peterson v. Schimek, 98-

1712 (La. 3/2/99), 729 So.2d 1024).

On appeal, summary judgments are reviewed de novo. Sensebe, 58 So.3d

441. When reviewing a trial court’s disposition of a motion for summary judgment,

an appellate court should apply ―the same criteria that govern the district court’s

consideration of whether summary judgment is appropriate.‖ Id. at 445. Where

addressing whether an exclusion precludes insurance coverage, the appropriate

questions are ―(1) whether the exclusion is clear and unambiguous; (2) whether the

exclusion applies to the facts of this case; and (3) whether there are any genuine

issues of material fact precluding summary judgment.‖ Proshee v. Shree, Inc., 04-

1145, p. 3 (La.App. 3 Cir. 2/2/05), 893 So.2d 939, 942.

A panel of this court recently reiterated the principles of insurance contract

interpretation in Burns v. Couvillion, 10-763 (La.App. 3 Cir. 12/8/10), 53 So.3d

540. This court stated:

―An insurance policy is an agreement between the parties and
should be interpreted by using ordinary contract principles.‖ Orazio v.
Henderson, 01-28, p. 2 (La.App. 3 Cir. 7/11/01), 790 So.2d 754, 755
(quoting Ledbetter v. Concord Gen. Corp., 95-809, p. 3 (La. 1/6/96),
665 So.2d 1166, 1169, amended on other grounds, 95-809 (La.
4/18/96), 671 So.2d 915). Additionally, ―[t]he contract has the effect
of law for the parties. La.Civ. Code art. 1983.‖ Id. When the
language in an insurance contract is clear and explicit, no further
interpretation may be made in search of the party’s intent. Hill v.
Shelter Mut. Ins. Co., 05-1783, 05-1818 (La. 7/10/06), 935 So.2d 691.
A court should not strain to find ambiguity where none exists. Hebert
v. Webre, 08-60 (La. 5/21/08), 982 So.2d 770.

Id. at 546. However, ―[e]xclusionary provisions in insurance contracts are strictly

construed against the insurer, and any ambiguity is construed in favor of the

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insured.‖ Ledbetter v. Concord Gen. Corp., 95-809, p. 4 (La. 1/6/96), 665 So.2d

1166, 1169, amended on other grounds, 95-809 (La. 4/18/96), 671 So.2d 915.

The “Assault and Battery” Exclusion

A copy of the commercial general liability policy is contained in the record.

The ―assault and battery‖ exclusion therein states:

The coverage under this policy does not apply to any claim, suit,
cost or expense arising out of assault and/or battery, or out of any act
or omission in connection with the prevention or suppression of such
acts, whether caused by or at the instigation or discretion of any
Insured or Insured’s employees, patrons or any other person. Nor
does this insurance apply with respect to any charges or allegations of
negligent hiring, training, placement or supervision. Furthermore,
assault and/or battery includes ―bodily injury‖ resulting from the use
of reasonable force to protect persons or property. The sentence ―This
exclusion does not apply to ―bodily injury‖ resulting from the use of
reasonable force to protect persons or property‖ is deleted from the
Commercial General Liability Coverage Form, Section I, Item 2,
Exclusions, a.

The plaintiff asserts that the assault and battery exclusion is ambiguous

because it fails to define ―bodily injury‖ and since it only applies to ―assault and/or

battery‖ and not wrongful death actions as a result of ―murder.‖ Markel contends

that although ―the assault and battery exclusion does not specifically include

murder,‖ there is no requirement that the exclusion enumerate the multiple

possibilities encompassed by the exclusion. Markel also notes that ―bodily injury‖

is defined elsewhere in the policy as ―bodily injury, sickness or disease sustained

by a person, including death resulting from any of these at any time.‖

In Bennett v. Ragon, 04-706, p. 7 (La.App. 1 Cir. 3/24/05), 907 So.2d 116,

120-21 (citations omitted), the first circuit explained that:

In the civil context . . . assault is generally defined as the ―threat of a
battery.‖ Battery is defined as ―[a] harmful or offensive contact with
a person, resulting from an act intended to cause him to suffer such a
contact.‖ . . . .

In the criminal context, Louisiana Revised Statutes 14:33
defines battery as ―the intentional use of force or violence upon the

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person of another.‖ Louisiana Revised Statutes 14:36 defines assault
as ―an attempt to commit a battery, or the intentional placing of
another in reasonable apprehension of receiving a battery.‖

We find no merit in the plaintiff’s assertion that the failure to include

―murder‖ in the assault and battery exclusion bars its application to the facts of this

case. The supreme court addressed the applicability of assault and battery

exclusions to other criminal conduct in Ledbetter, 665 So.2d 1166. Therein, the

supreme court quoted the United States Court of Appeals for the Second Circuit,

stating:

While it is true that ambiguities are often construed against
insurers, a clause may be general without being ambiguous, and even
a vague clause may be ambiguous only at its edges. It is neither
possible nor desirable for an insurance contract to enumerate the
various kinds and degrees of attacks encompassed by the assault and
battery exclusion. The clause need not mention rape or strangulation
or mayhem, or other greater or lesser invasions of the person; all are
subsumed in the broad language employed.

Ledbetter, 665 So.2d at 1170 (quoting United Nat’l Ins. Co. v. Waterfront New

York Realty Corp., 994 F.2d 105 (2d Cir. 1993)).

In Ledbetter, the supreme court addressed whether a rape and kidnapping

perpetrated against a hotel patron was included within the ambit of a similarly-

worded ―assault and battery‖ exclusion. Although assault, battery, and rape are

separately codified offenses under the criminal law, the supreme court noted that

the same criminal act can constitute a violation of multiple criminal statutes, even

if double jeopardy would prevent their prosecution. Id. The supreme court

concluded that, because a rape ―necessarily requires the intentional use of force

and/or violence upon the person of another,‖ the assault and battery exclusion was

unambiguous and precluded coverage for the rape. Id. at 1170. However, the

supreme court also concluded that, because kidnapping does not necessarily

involve the use of force and/or violence upon the person of another, the policy was

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ambiguous as applied to the facts of that case. Id.

In Bennett, 907 So.2d 116, the plaintiff brought suit as the result of the

shooting, and eventual death, of a bar patron by the bar’s owner during an apparent

robbery attempt by the patron. The first circuit noted that ―the facts clearly

demonstrate [the bar owner] intended an offensive contact when he fired the

shotgun.‖ Id. at 121. The first circuit ultimately concluded that a similarly-worded

assault and/or battery exclusion precluded coverage under the bar’s commercial

general liability policy, finding that the wrongful death action arose from the bar

owner’s assault and/or battery of the decedent. See also Law v. B.Z. Enter. One,

Inc., 96-0537 (La.App. 1 Cir. 12/20/96), 684 So.2d 1121; Gaspard v. Northfield

Ins. Co., 94-510, 94-511 (La.App. 3 Cir. 11/2/94), 649 So.2d 979, writ denied, 94-

2906 (La. 2/9/95), 650 So.2d 1166.

Despite the plaintiff’s contention that the ambiguity of the assault and

battery clause creates a genuine issue of material fact, the basic facts of this case

are not in dispute by the parties. The assault and battery exclusion clearly and

unambiguously precludes coverage for ―any claim, suit, cost or expense arising out

of assault and/or battery.‖ As alleged by the plaintiff, the facts indicate that

Angelle clearly intended an offensive contact when he shot at Mr. Williams. The

unfortunate fact that Mr. Williams was killed as a result of the offensive contact

does not negate that the claim arises from an assault and/or battery by Angelle.

Further, although the criminal charges of second degree murder are far more

serious than those of assault and battery, we note that ―[i]t is neither possible nor

desirable for an insurance contract to enumerate the various kinds and degrees of

attacks encompassed by the assault and battery exclusion. The clause need not

mention rape or strangulation or mayhem, or other greater or lesser invasions of

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the person; all are subsumed in the broad language employed.‖ Ledbetter, 665

So.2d at 1170. Therefore, we find no error in the trial court’s determination that

the assault and battery clause precludes coverage under the policy.

The Firearms Exclusion

Further, the insurance policy’s ―firearms‖ exclusion states, ―[t]his insurance

does not apply to ―bodily injury,‖ ―property damage,‖ ―personal injury,‖

―advertising injury‖ or medical payments arising out of the ownership, rental,

maintenance, use or misuse of any firearms.‖

Here too, the plaintiff contends that the exclusion is ambiguous because it

does not exclude coverage for wrongful death or death resulting from the

commission of a felony. We find the plaintiff’s argument to be without merit. The

record indicates that the plaintiff’s claims arise out of the allegations that Angelle

used a firearm to shoot Mr. Williams on the premises of the Quality Lounge.

Applying the principles of Ledbetter, 665 So.2d 1166, and Bennett, 907 So.2d 116,

we conclude that the terms of the policy are clear and unambiguous. Therefore, we

find that there was no error in the trial court’s determination that coverage is

precluded under the policy’s firearms exclusion.

This assignment of error is without merit.

Request for Sanctions

In brief, Markel requests sanctions and penalties for the plaintiff’s alleged

failure to abide by Uniform Rules—Courts of Appeal, Rule 2–14.1 and Uniform

Rules—Courts of Appeal, Rule 2–14.2. Markel alleges that the information listed

in the plaintiff’s certificate of service is incorrect. Markel also alleges that it

received a copy of the plaintiff’s brief ―more than a week after it was filed,‖ and

only after Markel’s attorney made several telephone requests for a copy. Counsel

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for the plaintiff contends that he accidentally sent a copy of the brief to another

attorney instead of Markel’s attorney. He argues that Markel was ―never impaired

or harmed by this minor clerical oversight‖ and that he should not be penalized.

Uniform Rules—Courts of Appeal, Rule 2–14.1 provides that ―[l]egible

copies of all papers filed in a Court of Appeal by any party shall, at or before the

time of filing, be delivered or mailed by the party to all other parties, or counsel of

record.‖ Uniform Rules—Courts of Appeal, Rule 2–14.2 further requires that a

―certificate listing all parties and all counsel, indicating the parties each represents,

and showing how and when such service was accomplished‖ shall be included.

Neither Rule 2–14.1 nor Rule 2–14.2 authorizes sanctions for a party’s failure to

comply with their requirements. Furthermore, Markel’s request is made in its

appellate brief, not by the filing of a motion. 2 See Newman v. Richard Price

Constr., 02-995 (La.App. 1 Cir 8/8/03), 859 So.2d 136; Econ. Auto Salvage Inc. v.

Allstate Ins. Co., 499 So.2d 963 (La.App. 3 Cir.), writ denied, 501 So.2d 199

(La.1986) (finding that a motion to strike is the proper procedural device to strike

improper evidence from the appellate record). Accordingly, we grant no relief in

this assignment.

Motion to Dismiss

In its appellate brief, Markel contends that this appeal should be dismissed

as premature due to a pending motion to dismiss filed in the trial court. Markel

asserts that its motion to dismiss was filed after Mrs. Williams failed to timely pay

the estimated costs of the appeal. However, both parties state in their briefs to this

court that the costs were paid on February 1, 2011. Mrs. Williams filed a reply

brief opposing the request to dismiss the appeal.

2
Pursuant to Uniform Rules—Courts of Appeal, Rules 2–7.1 and 2–7.2, the Courts of
Appeal may consider motions.

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The record indicates that the motion to dismiss was filed in the trial court

and that the related hearing was continued until March 21, 2011. Although the

record was lodged in this court on February 28, 2011, it is silent as to any further

actions taken on the motion to dismiss. However, according to the parties, the

appeal costs were paid prior to any hearing on the motion. See Lao. Bd. of

Massage Therapy v. Fontenot, 04-1525 (La.App. 3 Cir. 5/4/05), 901 So.2d 1232.3

In light of the procedural posture in which this matter now appears before this

court, we do not address Markel’s contention that this appeal should be

appropriately dismissed insofar as the issue became moot upon the payment of

costs. Id.

DECREE

For the foregoing reasons, we affirm the summary judgment of the trial court

finding that there is no coverage under the commercial general liability policy,

number GGAGL 3373, issued by Markel International Insurance Company, Ltd. to

Theresa Dean d/b/a Quality Lounge for the plaintiff’s claims as a matter of law and

dismissing all claims against Markel International Insurance Company, Ltd. Costs

are assessed to the plaintiff, Naomi Williams. We grant no relief as to the

intervenor’s requests for dismissal and sanctions.

AFFIRMED.

3
We note too that Markel did not file a motion to dismiss in this court urging that the
appeal was premature. Instead, it only advances this argument in its brief. See Fontenot, 901
So.2d 1232; Richards v. Everett, 509 So.2d 851 (La.App. 4 Cir. 1987).
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