Gabriel Lagrange v. Harley E. Boone

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 24-321

GABRIEL LAGRANGE, ET AL.

VERSUS

HARLEY E. BOONE, ET AL.

**********

APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C-90887 B
HONORABLE LALA B. SYLVESTER, DISTRICT JUDGE

**********

GUY E. BRADBERRY
JUDGE

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Court composed of Elizabeth A. Pickett, Guy E. Bradberry, and Wilbur L. Stiles,
Judges.

JUDGMENT CONFIRMING ARBITRATION AWARD AFFIRMED;
SUMMARY JUDGMENT IN FAVOR OF KLLM TRANSPORT SERVICES,
LLC d/b/a KLLM LOGISTICS SERVICES REVERSED; AND SUMMARY
JUDGMENT IN FAVOR OF GREAT WEST CASUALTY COMPANY
DISMISSING ALL CLAIMS BY KLLM TRANSPORT SERVICES, LLC
d/b/a KLLM LOGISTICS SERVICES GRANTED.

Anthony J. Milazzo, Jr.
Hebbler & Giordano, LLC
3501 N. Causeway Boulevard, #400
Metairie, LA 70002
(504) 833-8007
COUNSEL FOR DEFENDANT/APPELLEE:
Progressive Security Insurance Company

Jack E. Truitt
Michelle Mayne Davis
Lou Anne Milliman
Jennifer Cortes-Johnson
Michael St. Romain
Kaylin K. Storey
The Truitt Law Firm
1321 Ochsner Boulevard, Suite 200
Covington, LA 70433
(985) 327-5266
COUNSEL FOR DEFENDANT/APPELLEE:
KLLM Transport Services, LLC d/b/a KLLM Logistics Services

James M. Dill
Julie I. Faulk
The Dill Firm, APLC
P.O. Box 3324
Lafayette, LA 70502-3324
(337) 261-1408
COUNSEL FOR DEFENDANT/APPELLANT:
Roamer Transport, Inc.

Donna M. Johnson
Casler, Bordelon and Gelder
4415 American Way
Baton Rouge, LA 70816
(504) 434-3011
COUNSEL FOR DEFENDANT/APPELLEE:
Progressive Security Insurance Company

Deirdre C. McGlinchey
McGlinchey Stafford, PLLC
601 Poydras Street, 12th Floor
New Orleans, LA 70130
(504) 586-1200
COUNSEL FOR DEFENDANT/APPELLEE:
American Honda Company, Inc.

David A. Strauss
Marco J. Salgado
Strauss Massey Dinneen, LLC
935 Gravier Street, Suite 1250
New Orleans, LA 70112
(504) 380-0290
COUNSEL FOR DEFENDANT/APPELLANT:
Great West Casualty Company

Rachal D. Chance
Lewis Brisbois Bisgaard & Smith, LLP
400 Poydras Street, Suite 1300
New Orleans, LA 70130
(504) 322-4100
COUNSEL FOR DEFENDANT/APPELLANT:
Great West Casualty Company

Jared Dunahoe
Dunahoe Law Firm
402 Second Street
Natchitoches, LA 71457
(318) 352-1999
COUNSEL FOR PLAINTIFFS/APPELLEES:
Gabriel and Amanda LaGrange, Individually and on Behalf of the Minor
Children, Collin LaGrange, Jayce LaGrange, and Lindsay LaGrange

C. Kieffer Petree
Hinshaw & Culbertson, LLP
400 Convention Street, Suite 1001
Baton Rouge, LA 70802
(225) 333-3246
COUNSEL FOR DEFENDANT/APPELLANT:
Registry Monitoring Insurance Services, Inc.

Angela M. Hess
Hinshaw & Culbertson, LLP
400 Poydras Street, Suite 3150
New Orleans, LA 70130
(504) 904-8060
COUNSEL FOR DEFENDANT/APPELLANT:
Registry Monitoring Insurance Services, Inc.

Joseph E. Ritch
Elliott & Ritch LLP
321 Artesian Street
Corpus Christi, TX 78401
(361) 883-3000
COUNSEL FOR PLAINTIFFS/APPELLEES:
Gabriel and Amanda LaGrange, Individually and on Behalf of the Minor
Children, Collin LaGrange, Jayce LaGrange, and Lindsay LaGrange

Sarah R. Smith
Dinsmore & Shohl LLP
600 Travis Street, Suite 7350
Houston, TX 77002
(346) 293-7843
COUNSEL FOR DEFENDANT/APPELLANT:
Great West Casualty Company

Laura L. Gongaware
Siobhán Murphy
Clyde & Co US LLP
The Chrysler Building
405 Lexington Ave
New York, NY 10019
(212) 710-3900
COUNSEL FOR DEFENDANT/APPELLANT:
Great West Casualty Company

BRADBERRY, Judge.

This case involves appeals from two different judgments in the same trial

court. Roamer Transport, Incorporated (Roamer) appeals a judgment confirming an

arbitration award in favor of KLLM Transport Services, LLC d/b/a KLLM Logistics

Services (KLLM) and dismissing its motion to vacate the judgment. Roamer’s

insurer, Great West Casualty Company (Great West), appeals a different judgment

finding that KLLM is an insured under the liability policy it issued to Roamer.

FACTS

Gabriel LaGrange was driving a motorcycle in April 2018 when he was

involved in an accident with an eighteen-wheeler driven by Harley Boone. Mr.

Boone was employed as a driver by Roamer. Prior to the accident, KLLM contracted

with Roamer to provide transport services, and they entered into a broker-carrier

agreement. Mr. LaGrange and his wife filed suit, individually and on behalf of their

minor children, against numerous defendants, including KLLM, Roamer, Mr. Boone,

and Great West.

In a previous appeal to this court, LaGrange v. Boone, 21-560 (La.App. 3 Cir.

4/6/22), 337 So.3d 921, writ denied, 22-738 (La. 6/22/22), 339 So.3d 1185, this court

found the broker-carrier agreement was valid within the meaning of the Federal

Aviation Administration Authorization Act (FAAAA) and that the LaGrange family

could pursue negligent hiring claims against KLLM as falling within the safety

exception to FAAAA preemption.

The indemnification clause in the broker-carrier agreement provides:

INDEMNIFICATION: Carrier shall be liable to Broker and
the parties identified on bills of lading for any and all loss, damage, or
delay to shipments. The value of the shipment shall be sales price at
destination. Carrier shall indemnify, defend and save harmless Broker,
Broker’s customer and the parties identified on the bills of lading, and

its subsidiaries and their respective officers, directors, and employees
from and against all liabilities, obligations, losses, damages, penalties,
claims, actions, suits, costs, charges, and expenses, including without
limitation, fees and expenses of legal counsel and expert witnesses as
they accrue, which are the result of or arising out of any or all or the
work of services performed under this contract by Carrier or its
contractors.

KLLM sought contractual defense and indemnity from Roamer. Roamer

invoked the arbitration provisions of the broker-carrier agreement and filed an

exception of prematurity in the trial court, which was granted. The matter was

submitted to arbitration with the Transportation ADR Council. The parties elected

to proceed using the fast track arbitration procedure. Fast track arbitration is

available upon agreement of the parties, and the claim cannot exceed $50,000,

excluding interest and attorney fees. Fast track arbitration proceeds on documents

alone, with non-reasoned awards only, and is issued within thirty days after the

proceeding is closed.

On August 4, 2023, the arbitrator issued an award. The arbitrator found that

Roamer has a duty to defend and indemnify KLLM for damages arising from the

accident, including indemnity for attorney fees, costs, charges, and expenses as they

accrue. The arbitrator also found that the issue of whether KLLM was negligent in

the selection of Roamer was an issue the parties submitted to her for a decision and

found that KLLM was not negligent, rendering all other issues moot.

Subsequently, KLLM filed a motion to confirm the arbitration award in the

trial court, asking that it be dismissed from the suit and ordering Roamer to assume

its defense and indemnify KLLM against any award rendered, and awarding

attorney’s fees and costs incurred in the litigation. Roamer filed an application to

vacate the arbitration award and to have the damage award limited to $50,000.

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A hearing was held on September 14, 2023, with the trial court taking the

matter under advisement. A written order was signed on January 31, 2024,

confirming the arbitration award and finding that the award was mutual, final, and

definite. The court also held that the arbitrator did not exceed her authority in finding

that KLLM was not negligent. Roamer appealed this order.

Great West sought an exception of no right of action on KLLM’s August 2023

cross claim against it, in which KLLM sought to be recognized as an insured under

the policy issued by Great West to Roamer. In the alternative, Great West asked for

summary judgment in its favor. An order was issued by the trial court on January

25, 2024, which denied Great West’s exception of no right of action and also denied

its motion for summary judgment. The district court granted a motion for summary

judgment in part filed by KLLM, finding that KLLM is an insured under the policy

because Roamer’s contract with KLLM is an insured contract. Great West filed an

appeal of that order signed on January 25, 2024.

ROAMER APPEAL

Roamer has asserted several assignments of error in support of its position

that the arbitrator’s award be vacated, including: (1) whether the “manifest disregard

of the law” standard should be applied; (2) whether the arbitrator exceeded her

powers; and (3) whether the award was mutual, final, or definite. Roamer also

asserts that, if the award is confirmed, it must be limited to $50,000 as the amount-

in-controversy limit of the fast track procedure provided for in Rule 13 of the

Transportation ADR Council’s arbitration rules.

Standard of Review

Roamer argues that the Federal Arbitration Act applies because it preempts

state law and governs all written arbitration agreements in contracts connected to

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transactions involving interstate commerce. KLLM argues that federal law does not

apply in this case because it only applies to cases pending in a United States district

court.

“Because of the strong public policy favoring arbitration, arbitration awards

are presumed to be valid.” Crescent Prop. Partners, LLC v. Am. Mfrs. Mut. Ins. Co.,

14-969, 14-973, p. 6 (La. 1/28/15), 158 So.3d 798, 803. A court of appeal’s review

of a trial court’s confirmation of an arbitration award is de novo. NCO Portfolio

Mgmt., Inc. v. Walker, 08-1011 (La.App. 3 Cir. 2/4/09), 3 So.3d 628. “Unless

grounds for vacating, modifying or correcting the award are established, the award

must be confirmed, and the burden of proof is on the party attacking the award.” La.

Physician Corp. v. Larrison Fam. Health Ctr., L.L.C., 03-1721, p. 3 (La.App. 3 Cir.

4/7/04), 870 So.2d 575, 578. See also Crescent Prop. Partners, 158 So.3d 798.

Regarding the application of federal law or state law in arbitration proceedings

involving interstate commerce, this court has stated:

Louisiana has adopted the federal policy favoring arbitration.
Aguillard v. Auction Mgmt. Corp., 04–2804, 04–2857 (La.6/29/05),
908 So.2d 1. Arbitration in this state is governed by the Louisiana
Arbitration Law (“LAL”) found at La.R.S. 9:4201–4217. The Federal
Arbitration Act (“FAA”) is located at 9 U.S.C. §§ 1–16. The United
States Supreme Court has made it clear that the substantive provisions
of the FAA pre-empt state law and govern all written arbitration
agreements in contracts connected to transactions involving interstate
commerce. Collins v. Prudential Ins. Co. of America, 99–1423
(La.1/19/00), 752 So.2d 825. “Whether a claim is brought in state court
or federal court, and whether a claim is based on state or federal law,
courts must enforce arbitration agreements in contracts covered by the
FAA, notwithstanding any state statutory or jurisprudential rules to the
contrary.” Collins, 752 So.2d. at 827 (citations omitted). The phrase
“involving commerce” has been interpreted as the functional equivalent
of “affecting commerce,” and the Supreme Court has concluded that
Congress intended to exercise its commerce powers to the fullest in
legislating in favor of arbitration. Id.

NCO Portfolio Mgmt., Inc., 3 So.3d at 632.

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“It is well settled in both state and federal courts that an award may be

challenged only on the grounds specified in the statute. The court cannot substitute

its conclusion for that of the arbitrator.” Firmin v. Garber, 353 So.2d 975, 977

(La.1977) (citations omitted). “Accordingly, a court does not ordinarily sit in an

appellate capacity to an arbitration panel, but confines its determination to whether

there exists one or more of the specific grounds for impeachment as provided under

the applicable statute.” Godeau v. Picheloup Const. Co., Inc., 567 So.2d 697, 699

(La.App. 3 Cir. 1990) (quoting N. Cent. Utils., Inc. v. E. Columbia Water Dist., 480

So.2d 901, 904 (La.App. 2 Cir. 1988)); Town of Melville v. Safeco Ins. Co. of Am.,

94-1039 (La.App. 3 Cir. 3/1/95), 651 So.2d 404, writ denied, 95-836 (La. 5/5/95),

654 So.2d 333. As noted in NCO Portfolio Management, Inc., 3 So.3d 628, both

federal and state law contain almost identical, if not identical, language addressing

the arbitration matters at issue. Louisiana law lists the same four grounds for

vacating an arbitration award as federal law. The federal grounds for vacating an

arbitration award are found in 9 U.S.C.A. § 10(a):

In any of the following cases the United States court in and for
the district wherein the award was made may make an order vacating
the award upon the application of any party to the arbitration—

(1) where the award was procured by corruption, fraud, or undue
means;

(2) where there was evident partiality or corruption in the
arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to
postpone the hearing, upon sufficient cause shown, or in refusing to
hear evidence pertinent and material to the controversy; or of any other
misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly
executed them that a mutual, final, and definite award upon the subject
matter submitted was not made.

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Louisiana Revised Statutes 9:4210 lists the exact same four grounds for

vacating an arbitration award. Since Louisiana statutory provisions echo the Federal

Arbitration Act, “Louisiana courts look to federal law in interpreting the Louisiana

arbitration statutes.” Revelry Food Grp., LLC v. Nguyen Prop. Inv., LLC, 21-881, p.

5 (La.App. 1 Cir. 2/25/22), 340 So.3d 1151, 1155. Therefore, regardless of which

law applies, the statutory standards for vacating an arbitration award are the same.

Manifest Disregard of the Law

Roamer argues that there is an additional federal jurisprudential ground for

vacating an arbitrator’s award; when the arbitrator “manifestly disregarded the law.”

It is Roamer’s position that the arbitrator failed to apply Louisiana and Mississippi

law which would void the defense and indemnity obligations in the broker-carrier

agreement. KLLM argues that the “manifest disregard of the law” standard is not a

separate basis to set aside an arbitration award.

“‘Manifest disregard of the law’” refers to an error by the arbitration panel

that is obvious and capable of being readily and instantly perceived by an average

person qualified to serve as an arbitrator.” Crescent Prop. Partners, LLC, 158 So.3d

at 803, n.3. “The jurisprudential rule implies the arbitrator appreciates the existence

of a clearly governing legal principle but decides to ignore or pay no attention to it.”

Id. The supreme court in Crescent Properties Partners, LLC, noted that it has not

adopted such a principle and further observed that the United States Supreme Court

questioned its applicability in Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576,

128 S.Ct. 1396 (2008).

This court in Brown v. Kabco Builders, Inc. 18-928 (La.App. 3 Cir. 6/5/19),

274 So.3d 216, acknowledged the holding in Hall, and refused to consider arguments

regarding “manifest disregard of the law.” In Van Way v. Walker, 23-235 (La.App.

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3 Cir. 10/18/23), 372 So.3d 439, writ denied, 23-1516 (La. 1/17/24), 377 So.3d 249,

this court again held that an arbitrator’s findings of fact and law are statutorily

beyond judicial review and noted that “manifest disregard of the law” was not a

recognized standard to be applied when seeking to vacate an arbitration award.

“Vacating the arbitration award requires meeting one of the statutory grounds.” Id.

at 445. As observed by the court in Revelry Food Group, 340 So.3d at 1156, “By

consensually substituting arbitration for litigation, it is presumed that the parties

accept the risk of procedural and substantive mistakes of either fact or law by the

arbitrator, which mistakes are not reviewable by the district court.”

We find that “manifest disregard of the law” principle is not applicable. When

Roamer sought arbitration under the broker-carrier agreement, it accepted the fact

that an arbitrator’s award is given great deference and presumed to be valid.

Therefore, we will address the statutory grounds for vacation of the arbitrator’s

award raised by Roamer.

Exceeded Authority

Roamer claims that the arbitrator “exceeded [her] powers, or so imperfectly

executed them that a mutual, final, and definite award upon the subject matter

submitted was not made.” 9 U.S.C.A. § 10(a)(4); La.R.S. 9:4210. Roamer claims

that the arbitrator exceeded her authority in determining that KLLM was not

negligent. It also argues that the award obligates Roamer for any damages in the

main demand without any limitation.

Negligence

Roamer first claims that the issue of KLLM’s negligence was not included in

the parties’ arbitration/mediation referral form. Roamer states that the arbitration

clause in the broker-carrier agreement provides that “[a]ny and all disputes arising

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under this agreement shall be resolved in binding arbitration” which does not include

the issue of negligence. KLLM argues that the issue of its negligence was directly

before the arbitrator since she was asked to determine whether Roamer owed a duty

to defend and indemnify KLLM for its own negligence.

The arbitrator’s award specifically states: “Amongst other issues, the parties

presented to the Arbitrator the issue of whether Claimant [KLLM] was negligent in

the selection of Respondent [Roamer] and both provided detailed evidence on that

point.”

“The power of arbitrators is limited to what is explained in the submission.”

La.Civ.Code art. 3104. “The parties, who have submitted their differences to

arbitrators, must make known their claims, and prove them, in the same manner as

in a court of justice, by producing written or verbal evidence in the order agreed on

between them or fixed by arbitrators.” La.Civ.Code art. 3112. “The authority of

arbitrators extend [extends] only to the things contained in the submission, unless it

has been stated that they shall have power to decide all disputes which may

arise between the parties in the course of the arbitration.” La.Civ.Code art. 3122

(alteration in original) (emphasis added). “The question of whether an arbitrator has

the power to arbitrate a dispute depends on whether the parties to the dispute agreed

to submit the question to that arbitrator for decision.” Gen. Motors Corp. v. Pamela

Equities Corp., 146 F.3d 242, 248 (5th Cir. 1998).

An arbitrator exceeds his authority only if he acts outside the
scope of his contractually delegated authority by issuing an award
reflecting his own notions of economic justice rather than drawing its
essence from the contract. Because the parties bargained for the
arbitrator to interpret their contract, a decision even arguably construing
or applying the contract must stand, regardless of a district court’s view
of its demerits. By consensually substituting arbitration for litigation,
it is presumed that the parties accept the risk of procedural and
substantive mistakes of either fact or law by the arbitrator, which

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mistakes are not reviewable by the district court. Errors of fact or law
do not invalidate a fair and honest arbitration award.

Durr Heavy Constr., LLC v. Willow Grove – North, LLC, 24-90, p. 5 (La.App. 1 Cir.

8/6/24) (unpublished opinion) (2024 WL 3665532) (footnote omitted) (case citations

omitted).

Clearly, one of the “disputes arising under the agreement” is whether Roamer

owed a duty to KLLM to defend and indemnify it under the broker-carrier agreement

against any claims. Intertwined within that issue is whether Roamer owes a duty to

KLLM to indemnify it against its own negligence. Much of Roamer’s appeal is

devoted to this issue. Furthermore, the arbitrator’s award makes it clear that the

parties submitted the issue of KLLM’s negligence to the arbitrator in addition to

evidence on this issue. We do not find that the arbitrator exceeded her authority in

reaching the issue of whether KLLM was negligent.

Mutual, Final, or Definite Award

Roamer argues that the arbitration award should be vacated because it is not

mutual, final, or definite. It argues that it is obligated for un-itemized past and future

damages in an uncertain, indeterminate amount.

The general rule is that in order for an award to be final and
definite, it must resolve all issues submitted to arbitration, and
determine each issue fully so that no further litigation is necessary to
finalize the obligations of the parties under the award. Puerto Rico
Maritime Shipping v. Star Lines, Ltd., 454 F.Supp. 368, 372
(S.D.N.Y.1978). An award must also be clear enough to indicate what
each party is required to do. Curaco v. Solitron, 356 F.Supp. 1, 12
(S.D.N.Y.), aff’d, 489 F.2d 1313, cert. denied, 416 U.S. 986, 94 S.Ct.
2389, 40 L.Ed.2d 763 (1974).

Dighello v. Busconi, 673 F.Supp. 85, 90 (D. Conn. 1987), aff’d, 849 F.2d 1467 (2nd

Cir. 1988); D & B Framing, Inc. v. Harris Builders, L.L.C., 10-591 (La.App. 4 Cir.

8/27/10), 47 So.3d 634.

9

The arbitrator was only asked to decide “Whether Roamer owes defense and

indemnification to KLLM under the Broker Agreement between the parties”

according to the arbitration referral form filled out by the parties. This is what the

arbitrator decided. Pursuant to the broker agreement, she decided that Roamer owed

a duty to defend and indemnify KLLM and that damages were owed because of this

duty. She was not asked to determine the amount of damages. We find that the

arbitrator’s award was final, definite, and mutual based on the request submitted by

the parties.

$50,000 Limit

Roamer included a motion to enforce the award of the fast track jurisdictional

limit of $50,000. Pursuant to the confirmation letter for arbitration sent by the

arbitrator, the parties elected to proceed with fast track arbitration under Rule 13 of

the Arbitration Rules for the Transportation ADR Council. Fast track arbitration is

available to parties “for those claims in which the amount in controversy, excluding

interest and attorney fees, does not exceed the amount of Fifty Thousand Dollars

U.S. ($50,000.00).”

As we previously determined, the arbitrator was not asked to make an award

of damages so she did not make a specific award of damages. All she did was

determine if Roamer owed a duty to defend and indemnify KLLM, in addition to

whether KLLM was negligent after the parties made that request and submitted

evidence on that issue. Further evidence that damages were not at issue is the fact

that the amount in controversy listed on the arbitration referral was stated as

“Indeterminate[.]” We find no merit to this argument.

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GREAT WEST APPEAL

Great West was not part of the arbitration proceedings. In the trial court,

KLLM argued that it is an additional insured under the Great West policy pursuant

to the “insured contract” provision of the policy. The trial court granted summary

judgment in favor of KLLM finding that the policy Great West issued to Roamer

was an insured contract. Great West appeals this decision. Great West additionally

argues that the broker-carrier agreement is not an insured contract because KLLM

is “engaged in the business of transporting property by ‘auto’ for hire” which the

policy states does not provide coverage as an insured contract. Great West also

argues that it exhausted its policy limits in settlement of the claims the day the

petition for damages was filed. Pursuant to the settlement, Roamer and its driver

were released from liability for claims arising out of the accident. As a result, Great

West argues that it has no further liability.

Standard of Review

Appellate review of a ruling on a motion for summary judgment is de novo.

Corbajal v. Chris Owens French Quarter Parade, LLC, 24-191 (La. 5/21/24), 385

So.3d 236. “After an opportunity for adequate discovery, a motion for summary

judgment shall be granted if the motion, memorandum, and supporting documents

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(A)(3).

A motion for summary judgment can be utilized to determine the issue of

whether an insurance policy, as a matter of law, provides or excludes coverage.

Savoy v. Kelly-Dixon, 22-318 (La.App. 3 Cir. 11/23/22), 353 So.3d 981, writ denied,

22-1852 (La. 2/24/23), 356 So.3d 337; Meziere v. State Farm Mut. Auto. Ins. Co.,

21-430 (La.App. 3 Cir. 2/9/22), 362 So.3d 555.

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Insured Contract

An insurer has no duty to defend a party who is not a named insured. Savoy,

353 So.3d 981. An insurer’s duty to defend is explained in Maldonado v. Kiewit La.

Co., 13-756, 13-757, pp. 11–12 (La.App. 1 Cir. 3/24/14), 146 So.3d 210, 218-19:

Under Louisiana law, the duty to defend is broader than the duty
to indemnify. See Henly v. Phillips Abita Lumber Co., 2006-1856
(La.App. 1st Cir. 10/3/07), 971 So.2d 1104, 1109. The issue of whether
a liability insurer has a duty to defend a civil action against its insured
is determined by application of the “eight-corners rule,” under which
an insurer must look to the “four corners” of the plaintiff’s petition and
the “four corners” of its policy to determine whether it owes that duty.
Id.

The insurer’s duty to defend suits brought against its insured is
determined by the factual allegations of the injured plaintiff’s petition
with the insurer being obligated to furnish a defense unless it is clear
from the petition that the policy unambiguously excludes coverage.
Henly, 971 So.2d at 1109. Assuming the factual allegations of the
petition are true, if there could be both (1) coverage under the policy,
and (2) liability to the plaintiff, the insurer must defend the insured
regardless of the outcome of the suit. Id. Additionally, the factual
allegations of the petition are to be liberally interpreted in determining
whether they set forth grounds which bring the claim within the scope
of the insurer’s duty to defend the suit brought against its insured. Id.

If a petition does not allege facts within the scope of coverage,
an insurer is not legally required to defend a suit against its insured. The
most recently amended complaint provided to the insurer must be
examined to determine whether there is a duty to defend. When
uncontroverted facts preclude the possibility of a duty to indemnify, the
duty to defend ceases and the duty to indemnify is negated. See Allstate
Ins. Co. v. Roy, 94-1072 (La.App. 1st Cir. 4/7/95), 653 So.2d 1327,
1333, writs denied, 95-1121, 95-1215 (La. 6/16/95), 655 So.2d 339;
Pylant v. Lofton, 626 So.2d 83, 87 (La.App. 3d Cir.1993), quoting
Veillon v. U.S. Fire Ins. Co., 590 So.2d 1368, 1371 (La.App. 3d
Cir.1991).

“An insurance policy is a contract between the parties and should be construed

employing the general rules of interpretation of contracts.” Savoy, 353 So.3d at 985.

“Interpretation of a contract is the determination of the common intent of the parties.”

La.Civ.Code art. 2045. “When the words of a contract are clear and explicit and

12

lead to no absurd consequences, no further interpretation may be made in search of

the parties’ intent.” La.Civ.Code art. 2046. “The words of a contract must be given

their generally prevailing meaning.” La.Civ.Code art. 2047. “Words susceptible of

different meanings must be interpreted as having the meaning that best conforms to

the object of the contract.” La.Civ.Code art. 2048. “Each provision in a contract

must be interpreted in light of the other provisions so that each is given the meaning

suggested by the contract as a whole.” La.Civ.Code art. 2050.

Roamer is listed as the insured under the Great West policy. KLLM is not

listed as an insured but argues that it is an insured pursuant to the “insured contract”

provisions of the policy. The Great West policy excludes coverage for any liability

assumed under a contract but does provide coverage if there is an “insured contract.”

Under exclusions (emphasis added), the policy provides:

This insurance does not apply to any of the following:

....

2. CONTRACTUAL

Liability assumed under any contract or agreement. But this
exclusion does not apply to liability for damages:

a. Assumed in a contract or agreement that is an “insured
contract” provided the “bodily injury” or “property
damage” occurs subsequent to the execution of the contract
or agreement; or

b. That the “insured” would have in the absence of the contract
or agreement.

The Great West policy (emphasis added) defines an “insured contract,” in

pertinent part, as:

That part of any other contract or agreement pertaining to your business
(including an indemnification of a municipality in connection with
work performed for a municipality) under which you assume the tort
liability of another to pay for “bodily injury” or “property damage’ to

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a third party or organization. Tort liability means a liability that
would be imposed by law in the absence of any contract or
agreement[.]

KLLM argues that this provision confers coverage, as Roamer assumed tort

liability in the broker-carrier agreement. Pursuant to this provision, KLLM argues

that Great West had an obligation to defend it.

This court in Savoy, 353 So.3d 981, dealt with similar policy language

concerning a contractual liability exclusion provision and the definition of an

“insured contract.” The policy in Savoy also defined an insured “to include as an

additional insured any person or organization for whom you are performing

operations when you and such person or organization have agreed in writing in a

contract or agreement that such person or organization be added as an additional

insured on your policy.” There was additional language requiring there be “ongoing

operations” for the additional insured status to kick in. The court in Savoy found

that there was no work actively being engaged in at the time of the incident so the

additional insured provision was inapplicable.

In addressing the “insured contract” provisions of the insurance policy, which

are very similar to the provisions in this case, this court explained:

The policy does provide coverage to Esthay for defense and indemnity
for contracts that it enters into in which it assumes liability. The portion
of the policy that LCG refers to is standard contract language used in
commercial general liability policies. That provision, as noted above,
excludes coverage when an insured assumes liability in a non-tortious
contract such as breach of warranty claim, but provides an exception to
the exclusion when the insured is liable for damages due to an “insured
contract” and the property damage or bodily injury occurs subsequent
to the execution of the contract. Accordingly, Esthay is entitled to
coverage, including defense and indemnity, for amounts it may be
liable for to LCG if it was at least partially negligent in causing the
bodily injury. It does not, however, give LCG a right to defense and
indemnity.

Id. at 992 (bold emphasis added).

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This court further explained:

While all of these terms seem very similar, the difference
between what is excluded (damages the insured must pay for reason of
assumption of liability in a contract, i.e. breach of contract or warranty)
versus what is included (damages assumed in an “insured contract”
which is a contract pertaining to the insured’s business under which the
insured assumes tort liability of another person and bears some
responsibility for the negligence) are that “Tort liability means a
liability that would be imposed by law in the absence of any contract
or agreement.” In other words, negligence. Thus, this provision clearly
refers to the named insured, Esthay, being liable to LCG for indemnity
for its legal negligence, if it is so determined. On the contrary, if Esthay
entered into a contract with LCG to assume its liability for sidewalk
defects, it would be excluded under the policy because LCG has no tort
liability in that circumstance. All of this to say that the contractual
liability coverage extends to the named insured, Esthay, when it
must indemnify another party due to its tort liability.

Id. at 993 (bold emphasis added).

While we agree with the trial court that the broker-carrier agreement is an

insured contract under the policy, we do not find that the language in the Great West

policy confers the status of an insured or additional insured on KLLM, and therefore,

reverse summary judgment in favor of KLLM for the following reasons. For the

same reasons, we find that Great West is entitled to summary judgment in its favor.

KLLM cites Miller v. Superior Shipyard Fabrication, Inc., 01-2907 (La.App.

1 Cir. 8/20/03), 859 So.2d 159, for the proposition that if a written contract requires

an insured to defend a third party, the third party can be granted additional insured

status, even if not specifically named as an additional insured in the Policy. In Miller,

859 So.2d at 163 n.5, Superior, the named insured, and T.T.C. had a written service

contract which required Superior to name T.T.C. as an additional insured under the

liability policy issued to Superior as follows:

[Superior] shall obtain and maintain in full force and effect ...
comprehensive liability and property damage insurance with respect to
the use or operation of equipment or property owned, possessed,
transported or leased by [Superior], and [Superior] shall assume full

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liability to the public for the use or operation thereof. [Superior] shall
have T.T.C. added as an additional named insured on all policies
providing such coverage. (Emphasis added.)

The policy of insurance in Miller, 859 So.2d at 163, included an additional-

insured endorsement which specifically provided: “It is agreed that, if required by

written contract, any person, firm or organization is included as an Additional

Insured but only with respect to operations performed by the Named Insured or to

acts or omissions of the Named Insured in connection with the Named Insured’s

operations.” The court in Miller held that “[t]he endorsement was clearly intended

to limit the additional-insured status to claims arising out of [the named insured’s]

acts or omissions in connection with its operations and to protect the additional

insured from exposure to liability for [the named insured’s] acts or omissions.” Id.

In the present case, under the “INSURANCE” provision of the broker-carrier

agreement, it provides that “Broker shall be named via an Additional Insured

Endorsement on the Carriers’ General Liability and Auto and Truck Liability

Insurances[.]” KLLM was not named as an additional insured under the Great West

policy. Furthermore, and more importantly, there is no language in the Great West

policy like that in Savoy and Miller that states that a party required to be named as

an additional insured under a liability policy would become an additional insured

under the policy.

Contractual liability is listed as an exclusion for coverage. However, the

exclusion provision specifically states that it does not exclude coverage for any

assumption of liability in an insured contract. This means that there is coverage

provided to Roamer as the insured should it be found liable because of its assumption

of liability in the broker-carrier agreement to indemnify KLLM for any bodily injury

or property damage that arises out of the contractual agreement. Great West would

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be responsible to its insured, Roamer, for the amount it owes to KLLM as part of the

indemnity agreement. No language in the Great West policy indicates that the

indemnitee becomes an additional insured under the policy entitled to a defense

under the policy as in Savoy and Miller. For these reasons, we find that the trial

court erred in granting summary judgment in favor of KLLM.

For the reasons set forth in this opinion, we affirm the judgment of the trial

court confirming the arbitration award. Because we find that KLLM was not an

insured under the policy issued by Great West, we reverse the judgment of the trial

court granting summary judgment in favor of KLLM, and we grant summary

judgment in favor of Great West, dismissing the claims against it by KLLM. Costs

of this appeal are assessed equally between Roamer and KLLM.

JUDGMENT CONFIRMING ARBITRATION AWARD AFFIRMED;
SUMMARY JUDGMENT IN FAVOR OF KLLM TRANSPORT SERVICES,
LLC d/b/a KLLM LOGISTICS SERVICES REVERSED; AND SUMMARY
JUDGMENT IN FAVOR OF GREAT WEST CASUALTY COMPANY
DISMISSING ALL CLAIMS BY KLLM TRANSPORT SERVICES, LLC
d/b/a KLLM LOGISTICS SERVICES GRANTED.

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