Terry Leone v. Don Ware

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-638

TERRY LEONE

VERSUS

DON WARE, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 254,013
HONORABLE PATRICIA KOCH, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

REVERSED AND REMANDED.

C. R. Whitehead, Jr.
Whitehead Law Offices
Post Office Box 697
Natchitoches, Louisiana 71458-0697
(318) 352-6481
Counsel for Plaintiff/Appellant:
Terry Leone

Lottie L. Bash
Laura B. Matthews
Faircloth, Melton & Sobel, LLC
105 Yorktown Drive
Alexandria, Louisiana 71303
(318) 619-7755
Counsel for Defendant/Appellee:
Republic Fire and Casualty Insurance Company

KEATY, Judge.

Plaintiff/Appellant, Terry Leone, appeals the judgment of the trial court

granting a peremptory exception of no right of action in favor of

Defendant/Appellee, Republic Fire and Casualty Insurance Company. For the

following reasons, the trial court’s judgment is reversed, and the matter is

remanded for further proceedings.

FACTS & PROCEDURAL HISTORY

This personal injury matter arose after Terry Leone (Terry), a bail bondsman,

sustained injuries on May 20, 2015, in Woodworth, Louisiana, after he fell out of

the back door of a mobile home owned by Don Ware (Don) and occupied by his

son, Aaron Lee Ware (Aaron). Prior to the incident, Don was a guarantor on

Aaron’s criminal surety bond. Don contacted Terry, the bondsman, and advised

that he wanted to withdraw as guarantor. Thereafter, Terry went to the mobile

home to assist Don in apprehending Aaron to be turned over to the police. During

the subsequent physical altercation which ensued between the three individuals,

Terry fell out of the mobile home’s back door onto the ground and injured his knee.

On October 1, 2015, Terry filed a “Petition For Damages, Medical Expenses,

Loss Wages And Personal Injury” against Don and Aaron. He subsequently filed

an amended petition and named Don’s homeowners’ insurer, Republic Fire and

Casualty Insurance Company (Republic), as a co-defendant. Republic answered

the petition and amended petition, asserting therein a motion to strike and dilatory

exception of vagueness and ambiguity. The allegations contained in the petition,

which formed the basis of the exception, were thereafter stricken, and the dilatory

exception was dismissed pursuant to a consent judgment signed by the trial court

on February 22, 2017. Republic thereafter filed a peremptory exception of no right

of action, alleging that the insured’s actions being intentional were excluded under

Republic’s policy and the location of the alleged events was not a covered location

under the policy. Terry filed an opposition memorandum. Following a hearing on

April 24, 2017, the trial court orally granted the peremptory exception in favor of

Republic, dismissing Terry’s claims against it. A written judgment was signed on

May 3, 2017. In its subsequent written reasons for judgment dated May 23, 2017,

the trial court adopted its oral reasons given on April 24, 2017. Terry appealed.

On appeal, Terry contends the trial court committed legal error when it

granted Republic’s peremptory exception of no right of action, determining that the

allegations contained in the petition constituted an intentional tort and were

excluded under Republic’s policy.

STANDARD OF REVIEW

A peremptory exception of no right of action poses a question of law and is

reviewed de novo. Washington Mut. Bank v. Monticello, 07-1018 (La.App. 3 Cir.

2/6/08), 976 So.2d 251, writ denied, 08-530 (La. 4/25/08), 978 So.2d 369.

DISCUSSION

In his sole assignment of error, Terry contends the trial court legally erred

when it granted Republic’s peremptory exception of no right of action, finding that

the allegations contained in the petition constituted an intentional tort and were

excluded under Republic’s policy.

In Louisiana, an exception of no right of action is raised through a

peremptory exception pursuant to La.Code Civ.P. art. 927. The exception’s

function “is to determine whether the plaintiff belongs to the class of persons to

whom the law grants the cause of action asserted in the suit.” Reese v. State Dep’t

of Pub. Safety & Corrs., 03-1615, pp. 2-3 (La. 2/20/04), 866 So.2d 244, 246. The

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supreme court has noted that when reviewing a trial court’s ruling on an exception

of no right of action, an appellate court “should focus on whether the particular

plaintiff has a right to bring the suit and is a member of the class of persons that

has a legal interest in the subject matter of the litigation, assuming the petition

states a valid cause of action for some person.” Eagle Pipe & Supply, Inc. v.

Amerada Hess Corp., 10-2267, 10-2272, 10-2275, 10-2279, 10-2289, p. 7 (La.

10/25/11), 79 So.3d 246, 256. The burden of proof rests with the movant.

Montgomery v. Lester, 16-192 (La.App. 3 Cir. 9/28/16), 201 So.3d 966, writ

denied, 16-1944 (La. 12/16/16), 212 So.3d 1173. Evidence introduced in support

of a peremptory exception is governed by La.Code Civ.P. art. 931, which provides,

in pertinent part: “On the trial of the peremptory exception pleaded at or prior to

the trial of the case, evidence may be introduced to support or controvert any of the

objections pleaded, when the grounds thereof do not appear from the petition.”

Additionally, the court begins its analysis on an exception of no right of action

“with an examination of the pleadings.” Howard v. Adm’rs of Tulane Educ. Fund,

07-2224, pp. 17-18 (La. 7/1/08), 986 So.2d 47, 60.

In this case, an examination of the pleadings reveals Terry alleged he was

injured at a residence located at 319 Railroad Avenue and owned by Don. Terry

then asserted the following allegations against Republic in his amended petition:

8.

As plaintiff and Don were attempting to apprehend Aaron and
take him into custody a physical encounter was engaged between
plaintiff, Don and Aaron. During the time of the apprehension Don
used excessive physical force on Terry Leone and pushed him out the
backdoor of the mobile home.

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9.

Don Ware failed to advise Terry Leone that there was a defect
in the backdoor of the premises and when Don Ware and Aaron Ware
pushed Terry Leone up against a wall in the mobile home there was
no porch attached to the backdoor and plaintiff Terry Leone was
pushed out of the backdoor of the mobile home by Aaron and Don
and fell approximately five (5) feet to the ground.

13.

Defendants Don and Aaron used excessive and negligent
conduct causing injuries to plaintiff when they pushed Terry Leone
out of the backdoor of the mobile home and did not warn Terry Leone
that there was no outside porch or stairs attached to the backdoor.

In response to Terry’s allegations, Republic filed an exception of no right of

action, alleging that the insured’s actions were excluded under Republic’s policy.

In support, it offered into evidence a homeowners’ liability insurance policy,

number H13 1979835 01, which it issued to Don and Patsy Ware as the insureds.

The residence premises, which is an insured location under the policy, is listed as

43 Butler Drive. Section II(1)(e) of the policy excludes coverage for bodily injury

arising “out of a premises” which is “[o]wned by an ‘insured’ . . . that is not an

‘insured location[.]’” In the instant case, Terry’s petition asserts the incident

occurred at 319 Railroad Avenue.

Republic’s policy also contains an intentional acts exclusion in Section

II(1)(b) of the “Special Provisions” endorsement to the policy. According to the

endorsement, bodily injury caused by an insured is excluded from coverage as

follows:

With respect to loss caused by a peril other than fire and with respect
to all “insureds” covered under this policy;

1) Which is expected or intended by one or more “insureds”
even if the “bodily injury” or “property damage”:

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

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

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

After hearing oral arguments for both sides, the trial court granted the

exception. In the trial court’s written reasons for judgment dated May 23, 2017, it

adopted its oral reasons given on April 24, 2017, wherein it stated:

[W]hen you did your amendment you made it even more muddy so
that you used the language of excessive force and says particularly
Don pushed, and it wasn’t just the struggle that there might have been
going on when you’re trying to apprehend someone, so I am going to
agree with Ms. Bash that your allegations look like there is an
intentional tort, which would not be something that’s going to be
covered by the insurance company. So I’m granting her no right of
action.

Although the language employed in Terry’s pleadings may contain

allegations of intentional acts, we disagree with the trial court’s judgment because

the exclusion in Republic’s policy is an affirmative defense which may not be

raised through an exception of no right of action. See Cole v. State Farm Mut.

Auto. Ins. Co., 14-329 (La.App. 3 Cir. 10/1/14), 149 So.3d 831, writ denied, 14-

2145 (La. 1/9/15), 157 So.3d 598; see also Beslin v. Andarko Petroleum Corp., 11-

1523 (La.App. 3 Cir. 4/4/12), 87 So.3d 334. In Cole, 149 So.3d at 833, this court

agreed that “exclusions to insurance contracts must be specifically pleaded as

affirmative defenses.”

In Beslin, 87 So.3d at 338 (emphasis added), this court reversed the trial

court’s grant of summary judgment stating:

The basis of Grey Wolf’s Motion for Summary Judgment is
that Liberty waived its right to reimbursement. Waiver is an

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affirmative defense which must be expressly plead [sic] in the answer.
Garland v. Town of Ville Platte, 198 So.2d 451 (La.App. 3 Cir.1967).
Furthermore, the exception of no right of action cannot be used to
raise an affirmative defense. Madisonville State Bank v. Glick, 05-
1372 (La.App. 3 Cir. 5/3/06), 930 So.2d 263. Therefore, the proviso
of Article 1005 does not assist Grey Wolf, and its failure to plead
Liberty’s waiver of its right to subrogation as an affirmative defense
renders the trial court’s grant of summary judgment erroneous.

Pursuant to Cole and Beslin, Republic cannot raise an affirmative defense

regarding exclusions in its policy by an exception of no right of action. Therefore,

the trial court’s grant of Republic’s exception of no right of action is erroneous,

and its judgment is reversed.

DECREE

The trial court’s judgment in favor of Defendant/Appellee, Republic Fire

and Casualty Insurance Company, is reversed, and the matter is remanded for

further proceedings. All costs of this appeal are assessed to Defendant/Appellee,

Republic Fire and Casualty Insurance Company.

REVERSED AND REMANDED.

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