Roderick J. Rowan, Et Ux. v. Burke Homes, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 13-10

RODERICK J. ROWAN, ET UX.

VERSUS

BURKE HOMES, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20096808
HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE

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BILLY HOWARD EZELL
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.

Aubrey Edward Denton
P. O. Drawer 52110
Lafayette, LA 70505-2110
(337) 289-9151
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Roderick J. Rowan
Lois V. Rowan

Walter Kay Jamison, III
Kraft Gatz Lane Benjamin, LLC
600 Jefferson Street, Ste 410
Lafayette, LA 70501
(337) 706-1818
COUNSEL FOR DEFENDANT/APPELLEE:
Kenneth Frank

Matthew John Ungarino
David I. Bordelon
Ungarino & Eckert, LLC
3850 N. Causeway Blvd., #1280
Metairie, LA 70002
(504) 836-7565
COUNSEL FOR DEFENDANT/APPELLEE:
Bankers Insurance Company

Elbert Lee Guillory
633 E. Landry St.
Opelousas, LA 70570
(337) 942-6328
COUNSEL FOR DEFENDANT/APPELLEE:
Kenneth Frank

William H. Eckert
Ungarino & Eckert, LLC
200 W. Congress, Suite 1010
Lafayette, LA 70501-6876
(337) 235-6268
COUNSEL FOR DEFENDANT/APPELLEE:
Bankers Insurance Company

James Leslie Hilburn
10500 Coursey Blvd., Suite 205
Baton Rouge, LA 70816
(225) 389-8730
COUNSEL FOR DEFENDANTS/APPELLEES:
Burke Homes, Inc.
Jonathon Burke

Sharon Baskin Kyle
Nancy A. Richeaux
Nicholas R. Dunham
4960 Bluebonnet Blvd., Suite A
Baton Rouge, LA 70809
(225) 293-8400
COUNSEL FOR DEFENDANTS/APPELLEES:
Burke Homes, Inc.
Jonathon Burke

EZELL, Judge.

At issue in this case is whether a commercial general liability policy issued by

Bankers Insurance Company provides coverage in a suit filed by Roderick Rowan and

his wife, Lois, alleging defects and poor workmanship in Kenneth Frank’s brick work

in the construction of their new home. The trial court found that the policy did not

provide coverage and granted summary judgment in favor of Bankers Insurance

Company dismissing it from the suit. The Rowans appealed the judgment.

FACTS

On November 13, 2007, the Rowans entered into a contract to build a home in

Youngsville with Burke Homes, Inc. The Rowans began moving into their home a

year later. After moving into the home, the Rowans submitted punch lists to Burke

Homes. Several items on the punch lists listed major flaws in construction of the

home and/or poor workmanship. Several of the complaints involved the brick work.

Specifically, it was alleged that the problems in the home included:

defects and poor workmanship in the construction of the exterior brick
veneer of the home, . . . failure to properly cap the brick parapet, failure
to properly water proof [sic] the brick parapet and/or the exterior brick
veneer of the home, . . . failure to brick the front entrance to the home all
the way to the outside wall, . . . defects in the brick work around the
front windows [sic] sills of the home, damage to the shrubbery, lawn and
exterior concrete surfaces by the Defendants’ use of acid to clean
excessive mortar from the exterior brick veneer of the home.

The Rowans filed suit against Burke Homes and Jonathan Burke. As part of a

third-party demand against several other people and entities, the Burke Defendants

filed a claim against Kenneth Frank. Mr. Frank was the subcontractor who performed

the brick work on the Rowan home. The Rowans then amended their suit to add Mr.

Frank as an additional defendant. Mr. Frank’s commercial general liability insurer,

Bankers Insurance Company, was also named as a third-party defendant by the Burke

Defendants in a subsequent pleading.

Bankers filed a motion for summary judgment alleging that its policy of

insurance did not provide coverage for the claims asserted by the Rowans. A hearing

on the motion was held on August 13, 2012. The trial court agreed with Bankers and

held that it was entitled to summary judgment. Judgment dismissing Bankers from

the case was signed on August 13, 2012. Only the Rowans appealed the dismissal of

Bankers.

DISCUSSION

The Rowans appeal the trial court’s grant of summary judgment in favor

Bankers arguing that the trial court erred in finding that there was no “occurrence” as

defined by the Bankers’ policy. They further argue that there is no exclusion under

the “work/product” provisions of the policy. Bankers asserts that its policy language

is identical to the policy language in Supreme Services and Specialty Co., Inc. v.

Sonny Greer, Inc., 06-1827 (La. 5/22/07), 958 So.2d 634. Bankers argues that the

supreme court’s decision is applicable to the facts in the present case so that its

commercial general liability policy does not provide coverage. However, we find that

we do not need address these arguments as the record reveals that the Rowans never

filed suit against Bankers therefore, there can be no judgment affecting the rights

between these two parties.

Pursuant to La.Code.Civ.P. art. 1111, the original plaintiff in the principal

action may assert any demand against the third-party defendant arising out of or

connected with the principal demand once a third-party demand is made. The

jurisprudence is clear that a plaintiff cannot recover judgment against a defendant it

has never sued. Deblieux v. P.S. & Sons Painting, Inc., 405 So.2d 600 (La.App. 3 Cir.

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1981); Guilbeau v. Roger, 443 So.2d 773 (La.App. 3 Cir.), writ denied, 446 So.2d

1224 (La.1984); Kling v. Collins, 407 So.2d 478 (La.App. 1 Cir. 1981); Dennison v.

Liberty Mut. Ins. Co., 94-26 (La.App. 1 Cir. 11/10/94), 645 So.2d 1227; Wells &

Parker Architects, Inc. v. Monroe-McKeen Plaza Housing Dev. Corp., 556 So.2d 191

(La.App. 2 Cir. 1990).

We have thoroughly examined the record and find that the Rowans never filed

suit against Bankers. After the Burke Defendants added Kenneth Frank and Bryant

Bushnell d/b/a Bushnell’s Concrete Service, the Rowans amended their petition to add

these third-party defendants also. The Burke Defendants then added Bankers in a

later pleading as a third-party defendant. The Rowans never added Bankers as a

defendant. Because Bankers was not a party to the principal action filed by the

Rowans, the trial court could not properly render a judgment in favor of Bankers

dismissing the Rowans’ claims against it, where the Rowans had not yet asserted such

claims. See Dennison, 645 So.2d 1227. As a result, the trial court also erred in

assessing any court costs associated with Bankers’ motion for summary judgment

against the Rowans. All costs should be assessed to the Burke Defendants.

For these reasons, the judgment of the trial court in favor of Bankers Insurance

Company and against Jonathan Burke and Burke Homes, Inc. is affirmed. All costs

associated with Bankers’ motion for summary judgment are assessed to Jonathan

Burke and Burke Homes, Inc. The judgment of the trial court in favor of Bankers

Insurance Company and against Roderick and Lois Rowan, granting Bankers’ motion

for summary judgment, is reversed. Costs of this appeal are assessed to Lois and

Roderick Rowan.

AFFIRMED IN PART; REVERSED IN PART.

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