Calcasieu Parish School Board v. Mary Miller

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CW 11-1107 consolidated with CA 12-48

CALCASIEU PARISH SCHOOL BOARD

VERSUS

MARY MILLER, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2009-5619
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Christopher M. Trahan
Raggio, Cappel, Chozen & Berniard
1011 Lakeshore Drive, Suite 500
Lake Charles, LA 70601
(337) 436-9481
COUNSEL FOR PLAINTIFF/APPELLEE:
Calcasieu Parish School Board

Darren A. Patin
Shailendra U. Kulkarni

Hailey, McNamara, Hall, Larmann & Papale, L.L.P.
One Galleria Boulevard, Suite 1400
Metairie, LA 70001-8288
(504) 836-6500
COUNSEL FOR DEFENDANT/APPLICANT:
Louisiana Citizens Property Insurance Corporation

PETERS, J.

One of the defendants in this litigation, Louisiana Citizens Property

Insurance Company, appeals the grant of a summary judgment in favor of the

Calcasieu Parish School Board on the issue of insurance coverage. For the

following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

This litigation arises out of a December 4, 2008 accident involving

Katherine Kunzweiler, an employee of the Calcasieu Parish School Board (School

Board). On that day, while working as an art teacher at Washington Magnet High

School in Calcasieu Parish, Ms. Kunzweiler sustained personal injuries when she

was knocked down by a student while attempting to break up an altercation

between the student and another student. In the matter now before us, the School

Board is attempting to recover, from the offending student‟s mother and the

homeowner‟s insurance policy issued to her by Louisiana Citizens Property

Insurance (Louisiana Citizens), benefits it paid to Ms. Kunzweiler under the

Louisiana Workers‟ Compensation Act.

The underlying facts are not in dispute. On the morning of December 4,

2008, two female students in Ms. Kunzweiler‟s class, Keiarea Miller (Keiarea) and

a female student identified in the record as “Shondell,” began a verbal altercation.

Ms. Kunzweiler, who was in an adjacent room when the verbal altercation began,

entered the room to investigate and positioned herself between the two students.

At some point after Ms. Kunzweiler entered the room, Keiarea moved aggressively

toward Shondell. As Keiarea came in contact with Ms. Kunzweiler, she grabbed

her teacher‟s upper arms and forcefully moved her aside, causing Ms. Kunzweiler

to fall to the floor.

Because of the injuries sustained by Ms. Kunzweiler, the School Board

began paying her workers‟ compensation and medical benefits. On November 20,

2009, the School Board instituted suit against Mary Miller as natural mother and

natural tutrix of Keiarea, and Louisiana Citizens. The insurer met the suit by filing,

among other pleadings, a motion for summary judgment wherein it asserted that

the homeowner‟s policy issued to Ms. Miller did not provide coverage for the

damages claimed by the School Board. In response to Louisiana Citizens‟ motion,

the School Board filed a motion for summary judgment of its own seeking a

judgment declaring that the Louisiana Citizens‟ policy did provide coverage for the

damages sustained.

At the June 14, 2011 hearing on the summary judgment motions, the trial

court rejected Louisiana Citizens‟ motion and took the School Board‟s motion

under advisement. On June 21, 2011, the trial court issued written reasons for

judgment granting the School Board‟s motion and, on the next day, executed a

judgment encompassing both rulings.

Louisiana Citizens timely filed an application for supervisory writs

addressing the denial of its motion for summary judgment and perfected an appeal

addressing the grant of summary judgment to the School Board. On January 26,

2012, this court granted Louisiana Citizens‟ application for supervisory writs for

the limited purpose of consolidating that writ application with Louisiana Citizens‟

appeal.

OPINION

Both summary judgments address the interpretation of the same policy

language. The policy includes a standard form declarations section together with

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specific endorsements which alter some of the declaratory language of the standard

form.

Our supreme court has set out the principles to be used in interpreting

insurance policies:

In analyzing insurance polices, certain elementary legal
principles apply. First and foremost is the rule that an insurance
policy is a contract between the parties and should be construed using
the general rules of interpretation of contracts set forth in the Civil
Code. LeBlanc v. Aysenne, 05-0297, p. 3 (La.1/19/06), 921 So.2d 85,
89; Edwards v. Daugherty, 03-2103, p. 11 (La.10/1/04), 883 So.2d
932, 940; Cadwallader v. Allstate Insurance Co., 02-1637, p. 3
(La.6/27/03), 848 So.2d 577, 580; Louisiana Insurance Guaranty
Association v. Interstate Fire & Casualty Co., 93-0911, p. 5
(La.1/14/94), 630 So.2d 759, 763.

According to those rules, the responsibility of the judiciary in
interpreting insurance contracts is to determine the parties‟ common
intent. See, LSA-C.C. art. 2045; Edwards, 03-2103, p. 11, 883 So.2d
at 940; Cadwallader, 02-1637 at 3, 848 So.2d at 580; Blackburn v.
National Union Fire Insurance Co. of Pittsburgh, 00-2668, p. 6
(La.4/3/01), 784 So.2d 637, 641. Courts begin their analysis of the
parties‟ common intent by examining the words of the insurance
contract itself. See, LSA-C.C. art. 2046; Succession of Fannaly v.
Lafayette Insurance Co., 01-1355, p. 3 (La.1/15/02), 805 So.2d 1134,
1137; Blackburn, 00-2668 at 6, 784 So.2d at 641 (“[T]he initial
determination of the parties‟ intent is found in the insurance policy
itself.”). In ascertaining the common intent, 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, in which case the words must be ascribed their
technical meaning. See, LSA-C.C. art. 2047; Edwards, 03-2103 at 11,
883 So.2d at 940-941; Cadwallader, 02-1637 at 3, 848 So.2d at 580;
Succession of Fannaly, 01-1355 at 3, 805 So.2d at 1137.

An insurance contract is to be construed as a whole and each
provision in the contract must be interpreted in light of the other
provisions. One provision of the contract should not be construed
separately at the expense of disregarding other provisions. See, LSA-
C.C. art. 2050; Hill v. Shelter Mutual Insurance Co., 05-1783, p. 3
(La.7/10/06), 935 So.2d 691, 694; Succession of Fannaly, 01-1355 at
4-5, 805 So.2d at 1137; Peterson v. Schimek, 98-1712, p. 5
(La.3/2/99), 729 So.2d 1024, 1029. Neither should an insurance
policy be interpreted in an unreasonable or a strained manner so as to
enlarge or to restrict its provisions beyond what is reasonably
contemplated by its terms or so as to achieve an absurd conclusion.
LeBlanc, 05-0297, at 3, 921 So.2d at 89; Edwards, 03-2103 at 11, 883
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So.2d at 941; Cadwallader, 02-1637 at 3, 848 So.2d at 580; Peterson,
98-1712 at 5, 729 So.2d at 1028.

When the words of an insurance contract are clear and explicit
and lead to no absurd consequences, no further interpretation may be
made in search of the parties‟ intent and courts must enforce the
contract as written. See, LSA-C.C. art. 2046; Hill, 05-1783 at 3, 935
So.2d at 694; Peterson, 98-1712 at 4-5, 729 So.2d at 1028. Courts
lack the authority to alter the terms of insurance contracts under the
guise of contractual interpretation when the policy's provisions are
couched in unambiguous terms. Cadwallader, 02-1637 at 4, 848
So.2d at 580; Succession of Fannaly, 01-1355 at 4, 805 So.2d at 1138.
The rules of contractual interpretation simply do not authorize a
perversion of the words or the exercise of inventive powers to create
an ambiguity where none exists or the making of a new contract when
the terms express with sufficient clarity the parties‟ intent. Edwards,
03-2103 at 12, 883 So.2d at 941; Succession of Fannaly, 01-1355 at 4,
805 So.2d at 1138; Peterson, 98-1712 at 5, 729 So.2d at 1029.

Nevertheless, if, after applying the general rules of contractual
interpretation to an insurance contract, an ambiguity remains, the
ambiguous contractual provision is generally construed against the
insurer and in favor of coverage. See, LSA-C.C. art. 2056;
Succession of Fannaly, 01-1355 at 4, 805 So.2d at 1138; Peterson, 98-
1712 at 5, 729 So.2d at 1029. Under this rule of strict construction,
equivocal provisions seeking to narrow an insurer‟s obligation are
strictly construed against the insurer. Edwards, 03-2103 at 12, 883
So.2d at 941; Cadwallader, 02-1637 at 4, 848 So.2d at 580; Carrier
v. Reliance Insurance Co., 99-2573, p. 12 (La.4/11/00), 759 So.2d 37,
43. This strict construction principle applies, however, only if the
ambiguous policy provision is susceptible to two or more reasonable
interpretations; for the rule of strict construction to apply, the
insurance policy must be not only susceptible to two or more
interpretations, but each of the alternative interpretations must be
reasonable. Edwards, 03-2103 at 12, 883 So.2d at 941; Cadwallader,
02-1637 at 4, 848 So.2d at 580; Carrier, 99-2573 at 12, 759 So.2d at
43.

The determination of whether a contract is clear or ambiguous
is a question of law. Edwards, 03-2103 at 12-13, 883 So.2d at 941;
Cadwallader, 02-1637 at 4, 848 So.2d at 580; Louisiana Insurance
Guaranty Association, 93-0911 at 7, 630 So.2d at 764. Moreover,
when a contract can be construed from the four corners of the
instrument without looking to extrinsic evidence, the question of
contractual interpretation is answered as a matter of law and summary
judgment is appropriate. Robinson v. Heard, 01-1697, p. 4
(La.2/26/02), 809 So.2d 943, 945; Peterson, 98-1712 at 5, 729 So.2d
at 1029.

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Sims v. Mulhearn Funeral Home, Inc., 07-54, pp. 7-10 (La. 5/22/07), 956 So.2d
583, 588-90.

The pertinent language of the standard form portion of Louisiana Citizens‟

policy addressing personal liability and medical expense issues reads as follows:

SECTION II – LIABILITY COVERAGES

A. Coverage E – Personal Liability

If a claim is made or a suit is brought against an “insured” for
damages because of “bodily injury” or “property damage”
caused by an “occurrence” to which this coverage applies, we
will:

1. Pay up to our limit of liability for the damages for which an
“insured” is legally liable. Damages include prejudgment
interest awarded against an “insured”, and

2. Provide a defense at our expense by counsel of our choice,
even if the suit is groundless, false or fraudulent. We may
investigate and settle any claim or suit that we decide is
appropriate. Our duty to settle or defend ends when our
limit of liability for the “occurrence” has been exhausted by
payment of a judgment or settlement.

B. Coverage F - Medical Payments To Others

We will pay the necessary medical expenses that are incurred or
medically ascertained within three years from the date of an
accident causing “bodily injury”. Medical expenses means
reasonable charges for medical, surgical, x-ray, dental,
ambulance, hospital, professional nursing, prosthetic devices
and funeral services. This coverage does not apply to you or
regular residents of your household except “residence
employees”. As to others, this coverage applies only:

....

2. To a person off the “insured location”, if the “bodily injury”:

....

b. Is caused by the activities of an “insured”;

This coverage language is limited by the exclusion section of the policy.

SECTION II – EXCLUSIONS

....
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E. Coverage E - Personal Liability and Coverage F – Medical
Payments To Others

Coverages E and F do not apply to the following:

1. Expected Or Intended Injury

“Bodily injury” or “property damage” which is expected or
intended by an “insured” even if the resulting “bodily
injury” or “property damage”:

a. Is of a different kind, quality or degree than initially
expected or intended; or

b. Is sustained by a different person, entity, real or
personal property, than initially expected or intended.

However, this Exclusion E.1. does not apply to “bodily injury”
resulting from the use of reasonable force by an “insured” to
protect persons or property;

The problem in the interpretation of the policy language is that the Louisiana

Citizens policy contains an endorsement entitled “SPECIAL PROVISIONS –

LOUISIANA” which rewrites some of the language governing liability coverage

and exclusions from that coverage.1 Of significance to the matter before us is the

fact that the endorsement completely rewrote and replaced the language of

Coverage E - Personal Liability and Coverage F – Medical Payments To

Others found in the standard form policy. This endorsement reads as follows:

E. Coverage E - Personal Liability and Coverage F - Medical
Payments to Others

Paragraph 1. Is replaced by the following in all forms and
Endorsement HO 24 73:

1. Expected Or Intended Injury

With respect to loss:

1
With regard to liability coverage, the endorsement merely changes paragraph A(1) of
SECTION II – LIABILITY COVERAGES to read “Pay up to our limit of liability for the
damages for which an “insured” is legally liable[.]” This particular change does not affect the
analysis required in this opinion.
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a. Caused by fire; which is expected or intended by the “insured”
even if the “bodily injury” or “property damage”:

(1) Is of a different kind, quality, or degree than initially
expected or intended; or

(2) Is sustained by a different person, entity, real or personal
property, than initially expected or intended.

However, this Exclusion E.1.a. does not apply to “bodily injury”
resulting from the use of reasonable force by the “insured” to
protect persons or property.

b. Caused by a peril other than fire and with respect to all
“insureds” covered under this policy which is expected or
intended by one or more “insureds” even if the “bodily injury”
or “property damage”:

(1) Is of a different kind, quality, or degree than initially
expected or intended; or

(2) Is sustained by a different person, entity, real or personal
property, than initially expected or intended.

However, this Exclusion E.1.b. does not apply to “bodily
injury” resulting from the use of reasonable force by one or
more “insured” to protect persons or property.

(Emphasis added.)

In its June 20, 2011 reasons for granting the School Board‟s motion for

summary judgment on the coverage issue, the trial court stated the following:

Section II, Coverage E is the personal liability coverage of the
policy. Paragraph E provides exclusions to coverage E. The language
of paragraph 1 of paragraph E was clear in the original policy, but is
not so clear in the substituted paragraph 1 (“Special Provisions –
Louisiana”). The lack of clarity is due to the use of the phrases “With
respect to loss,” “caused by fire” and “caused by a peril other than
fire ….” A “loss” is not a liability. It is an insured loss, as in a Sect. 1
fire or other property loss. Likewise, a “peril” is not a liability. As a
result, the School Board correctly argues that the attempt to use the
“expected or intended injury” language as a liability exclusion fails
because it is placed in the context of a “loss” or “peril.”

Louisiana Citizens asserts that this language excludes coverage for any

injury derived from the intentional act of an insured where bodily injury of any

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kind was expected or intended by an insured. However, we agree with the trial

court that, due to the Louisiana-specific provision‟s use of the terms “loss” and

“peril,” this language does not exclude liability caused by an expected or intended

injury.

Under the policy‟s exclusion language, as amended by the Louisiana-

specific provision, liability coverage and medical payments to others would not be

provided “[w]ith respect to loss . . . [c]aused by a peril other than fire and with

respect to all „insureds‟ covered under this policy which is expected or intended by

one or more „insureds‟ . . . .” “Peril” is not defined in the policy, nor is it used in

Section Two, which sets out liability coverage. However, it is used extensively in

Section One, which sets out property coverage. In that section, there is a

subsection on “PERILS INSURED AGAINST,” which states that loss to property

is covered when it is caused by any of the following “perils”: fire, lightning,

windstorm, hail, explosion, riot, civil commotion, aircraft, vehicles, smoke,

vandalism, malicious mischief, or theft.

Thus the language at issue, “[c]aused by a peril other than fire . . . ,” would

seem to refer to the sorts of perils that are referenced elsewhere in the policy, not

the sort of incident that resulted in Ms. Kunzweiler‟s injuries.

Louisiana Citizens argues that the language in the Louisiana Special

Provisions E.1.b.(1) and (2) demonstrates that the exclusion applies because it

specifically discusses “bodily injury” and “property damage” that “[i]s of a

different kind, quality, or degree than initially expected or intended; or (2) [i]s

sustained by a different person, entity, real or personal property, than initially

expected or intended.” However, this language does not establish the content of

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the exclusion; it only forecloses having it not apply when there are allegations of

misplaced intent.

Based on our review of the policy language, we find that the policy‟s

Louisiana-specific expected or intended injury exception language is ambiguous.

Consequently, the trial court did not err in denying Louisiana Citizens‟ motion for

summary judgment and granting summary judgment in favor of the School Board.

DISPOSITION

For the foregoing reasons, we affirm the trial court‟s denial of Louisiana

Citizens Property Insurance Corporation‟s motion for summary judgment and its

grant of summary judgment in favor of the Calcasieu School Board. We assess all

costs of this appeal and writ application to Louisiana Citizens Property Insurance

Corporation.

AFFIRMED.

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