Joyce Gorman v. City of Opelousas

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1468

JOYCE GORMAN

VERSUS

CITY OF OPELOUSAS, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT,
PARISH OF ST. LANDRY, NO. 10-C-4849-D
HONORABLE DONALD W. HEBERT, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Marcus A. Allen, Sr.
Attorney At Law
631 E. Simcoe Street
Lafayette, LA 70501
(337) 289-1726
COUNSEL FOR DEFENDANT:
Chadwick King

Pride J. Doran
The Doran Law Firm
P. O. Box 2119
Opelousas, LA 70571
(337) 235-3989
COUNSEL FOR DEFENDANT-APPELLANT:
City of Opelousas

James S. Gates
Morrow, Gates & Morrow, LLC
P. O. Drawer 219
Opelousas, LA 70571-0219
(337) 942-6529
COUNSEL FOR PLAINTIFF-APPELLANT:
Joyce Gorman

Keely Y. Scott
Donohue, Patrick & Scott
P. O. Box 1629
Baton Rouge, LA 70821-1629
(225) (214-1980
COUNSEL FOR DEFENDANT-APPELLEE:
Lexington Insurance Company

PAINTER, Judge.

Plaintiff, Joyce Gorman (Gorman), and Defendant, the City of Opelousas

(the City), appeal the trial court’s grant of summary judgment in favor of

Lexington Insurance Company (Lexington), the City’s insurer, in this wrongful

death suit. For the following reasons, we affirm the grant of summary judgment in

favor of Lexington as to the City; however, we reverse the grant of summary

judgment in favor of Lexington as to Gorman, and remand the matter to the trial

court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Gorman’s son, Brian Armstrong (Armstrong), was incarcerated at the

Opelousas City Jail on September 28, 2009, when he was beaten by two other

inmates. Armstrong died as a result of the injuries. Gorman filed suit for wrongful

death on September 27, 2010. She named the City, the Opelousas Police

Department, and the two inmates as defendants. The original petition made no

mention of any insurance company. The City was served with the petition on

September 30, 2010, and filed its answer on November 24, 2010.

On or about December 2, 2010, Gorman filed discovery requests seeking the

identity of any companies providing insurance to the City and/or the Opelousas

Police Department as well as copies of any such polices. Gorman filed a motion to

compel responses to this discovery, which was granted on June 6, 2011. The City

was ordered to answer the outstanding discovery by June 21, 2011. The City

identified Lexington as its insurer under a policy bearing number 031428128.

Following receipt of the discovery responses, Plaintiff filed an amended petition

naming Lexington Insurance Company as an additional defendant on November 7,

2011. Lexington answered the petition, asserting several affirmative defenses and

denying coverage.

On March 12, 2012, Lexington filed a motion for summary judgment

alleging that there was no coverage under the policy it issued to the City because

coverage for the alleged damage only extended to claims first made against the

City and reported to Lexington in writing during the policy period. In support of

its motion, Lexington submitted a certified copy of the policy and an affidavit of

Stephen Burwell to authenticate the policy. Lexington also submitted the original

and supplemental petition along with the Sheriff’s returns showing service for

each. Lexington alleged that the subject policy was a claims made and reported

Law Enforcement Professional Liability Policy which required three things: (1)

that the wrongful act occur on or after the retroactive date of the policy (here, April

17, 2005); (2) that the claim be first made against the City during the policy period

(here, April 17, 2010, to April 17, 2011); and (3) that the claim be reported to

Lexington in writing during the policy period. Lexington argued that it provided

no coverage in this instance because the claim had not been reported to it in writing

during the policy period. Neither Gorman nor the City submitted any evidence in

opposition to Lexington’s motion; however both filed motions for summary

judgment seeking a determination that Lexington did provide coverage for the

damages alleged by Gorman. The trial court agreed with Lexington and granted

summary judgment in favor of Lexington dismissing all claims against it with

prejudice. The motions for summary judgment filed by Gorman and the City were

denied. The judgment was designated as a final and appealable judgment, and this

appeal followed.

DISCUSSION

―Interpretation of an insurance policy generally involves a legal question

which can be resolved properly in the framework of a motion for summary

judgment.‖ Burmaster v. Plaquemines Parish Gov’t, 10-1543, p. 4 (La.App. 4 Cir.
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3/30/11), 64 So.3d 312, 316 (citing Bonin v. Westport Ins. Corp., 05-886, p. 4

(La.5/17/06), 930 So.2d 906, 910). Moreover, it is well settled that:

We review a summary judgment determining insurance
coverage de novo, using the same criteria for these insurance issues as
those governing the trial court's consideration of whether summary
judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State
Univ., 591 So.2d 342 (La.1991). ―Where the meaning of a contract is
to be determined solely from the words upon its face, without the
necessity of extrinsic evidence, the appellate courts are as competent
to review the evidence as the trial court, and no special deference is
usually accorded the trial court's findings.‖ Id. at 345. Summary
judgment should be granted where ―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).

Regions Bank v. Kountz, 05-1106, pp. 4-5 (La.App. 3 Cir. 5/31/06), 931 So.2d 506,

510.

It is undisputed that Lexington issued policy number 031428128 to the City.

The policy is clearly identified as a claims made policy. The declaration sheet

clearly provides the following notice: ―THIS IS A CLAIMS MADE POLICY.

COVERAGE IS LIMITED GENERALLY TO LIABILITY FOR CLAIMS FIRST

MADE AGAINST YOU AND REPORTED IN WRITING TO US WHILE THE

COVERAGE IS IN PLACE.‖ Furthermore, Section I of the policy provides, in

pertinent part:

A. We shall pay those amounts that the Insured becomes legally
obligated to pay to compensate others for bodily injury, property
damage, or personal injury arising out of the Insured’s wrongful
act. The wrongful act shall take place on or after the retroactive
date, but before the end of the policy period, and shall arise solely
in your capacity as a law enforcement agency. A claim for
wrongful act shall be first made against the Insured and reported to
us in writing during the policy period or any extended reporting
period we provide under this policy.

The policy period was from April 17, 2010, to April 17, 2011. The retroactive date

of the policy was April 17, 2005. Lexington admits that the alleged wrongful act

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occurred after the retroactive date of the policy and that the City was put on notice

of the claim during the policy period. Lexington avers, however, that there is no

coverage under this policy because it was neither notified in writing of the claim

nor did the City report the claim to it until it was served with the amended petition

on September 22, 2011, well after the expiration of the policy period at issue.

Gorman and the City argue that coverage should be provided because there

was no lapse in coverage, i.e. because the City renewed its coverage with

Lexington, the city was effectively extending the policy period. Lexington, on the

other hand, argues that even though it renewed the City’s coverage, there are two

separate policy periods that cannot be ―merged into one‖ as Gorman and the City

allege. To do so would render the policy language requiring that the claim be first

made against the insured and reported to the insurer within the same policy period

moot. This court and our supreme court have often recognized that insurers may

use clear and unambiguous notice provisions to ―limit their liability and impose

such reasonable conditions as they wish upon the obligations they assume by their

contract.‖ Regions, 931 So.2d at 511 (quoting Livingston Parish Sch. Bd. v.

Fireman’s Fund Am. Ins. Co., 282 So.2d 478, 481 (La.1974)).

We do not agree with Gorman and the City’s reasoning that the policy

periods have ―merged into one.‖ We rely instead on the strikingly similar case of

Murray v. City of Bunkie, 96-297 (La.App. 3 Cir. 11/6/96), 686 So.2d 45, writ

denied, 97-514 (La. 5/9/97), 693 So.2d 767. In that case, a former inmate of the

Bunkie city jail filed suit against the City of Bunkie (Bunkie), a Bunkie police

officer, United Community Insurance Company (UCIC), and International Surplus

Lines Insurance Company (ISLIC), alleging that he suffered damages while

incarcerated because he was denied access to ulcer and heart medication. ISLIC

filed a motion for summary judgment, denying coverage based on the allegation
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that Bunkie did not inform it of the claim within the policy period. The policy in

Murray was a claims made policy which specifically required that ―the Insured

shall, as soon as practicable and within the policy period, give written notice‖ to

the insurer. In opposition to the motion, Bunkie filed an affidavit of the City Clerk

asserting that she forwarded a demand letter from Murray to Bunkie’s insurance

agent and that after further investigation she determined that insurance was

provided by ISLIC and forwarded the suit to ISLIC on August 17, 1994 (after the

expiration of the applicable policy period). This court found that as to the issue of

coverage between the insured and the insurer, Livingston controlled to defeat that

claim under the terms of the contract. The court cited Livingston, 282 So.2d at

482: ―No reasonable expectation of coverage by the insured was defeated by the

unambiguous provision clearly limited [sic] coverage to those claims discovered

and reported during the policy period.‖ Id. at 48. However, as to the claim of the

injured third party, this court found that Livingston was not controlling because it

―did not address the issue of coverage in the context of a claim by an injured third

party against the insurer.‖ Id. This court specifically found that the direct action

statute, at that time enumerated as La.R.S. 22:655, gave the injured party a vested

right (which vests at the time the tort is committed) that ―could not be taken away

because of the insured’s failure to notify the insurer—a condition over which the

plaintiff had no control.‖ Id. at 50. This court held ―that notice provisions could

not be used as a coverage defense against third parties who had no knowledge of

the provision and who had taken steps to pursue their legal remedies.‖ Pittman v.

Nutmeg Ins. Co., 97-524, p. 5 (La.App. 3 Cir. 3/6/98), 708 So.2d 832, 834. We

agree with Murray that while the provisions in the Lexington policy are not per se

invalid, the contractual notice provision cannot be used to deprive Gorman of her

vested rights under the direct action statute.
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DECREE

The summary judgment granted to Lexington insofar as it pertains to the

City is affirmed. However, the summary judgment granted to Lexington insofar as

it pertains to Gorman is reversed. The matter is hereby remanded to the trial court

for further proceedings. Costs of this appeal are assessed equally to Lexington and

the City.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of
Appeal, Rule 2–16.3.

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