Alex M. Legros v. Great American Insurance Company of New York

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CW02-1485

ALEX M. LEGROS

VERSUS

GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, ET AL.

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ON APPLICATION FOR SUPERVISORY WRITS FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NUMBER 10-15935
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

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BILLIE COLOMBARO WOODARD
JUDGE

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Court composed of Billie Colombaro Woodard, Michael G. Sullivan, and Billy
Howard Ezell, Judges.

WRIT DENIED.

Gregory P. Marceaux Marshall M. Redmon
Marceaux Law Firm Virginia Y. Trainor
1800 Ryan Street, Suite 101 Phelps, Dunbar, L.L.P.
Lake Charles, Louisiana 70601 Post Office Box 4412
(337) 433-3300 Baton Rouge, Louisiana 70821-4412
Counsel for Plaintiff/Respondent: (225) 346-0285
Alex LeGros Counsel for Defendant/Applicant:
U.S. Risk Brokers, Inc.
Billy Edward Loftin, Jr.
Attorney at Law Randell E. Treadaway
2901 Hodges Street Jessica G. Roux
Lake Charles, Louisiana 70601 Reich, Meeks & Treadaway, L.L.C.
(337) 310-4300 3850 North Causeway Boulevard
Counsel for Plaintiff/Respondent: Two Lakeway Center, Suite 1000
Alex LeGros Metairie, Louisiana 70002
(504) 830-3999
Counsel for Defendant/Respondent:
Great American Insurance
Company of New York

Robert Edwin Torian
LaBorde & Neuner
Post Office Drawer 52828
Lafayette, Louisiana 70505-2828
(337) 237-7000
Counsel for Defendant/Respondent:
Crick Insurance Agency

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WOODARD, Judge.

U.S. Risk applied to this court for a supervisory writ, alleging that it can have
no liability to Mr. LeGros for damages to his fishing vessel; therefore, the trial court
erred in denying its motion for summary judgment. We find no error in the trial
court’s decision and deny U.S. Risk’s writ, accordingly.

*****

The Plaintiff, Mr. Alex LeGros, a self-employed commercial fisherman, had
just unloaded his catch at Don Bailey’s Fish House on June 5, 2001, when his vessel,
M/V MISS ANGIE, caught fire. He and some of the deck hands and dock hands were
able to extinguish the fire but not before it caused substantial damage to the vessel’s
living quarters and pilothouse.
Accordingly, Mr. LeGros filed a claim with his insurance company to recover
his loss. The insurance company denied recovery, both, because his policy had
expired three days before the fire and because he had violated the trading warranty
designation of “port risk,” which it claims voided the policy, even before its expiration
date. Thus, Mr. LeGros filed suit against The Crick Agency, Inc. (Crick), U.S. Risk
Brokers, Inc. (U.S. Risk), and Great American Insurance Company of New York, f/k/a
American National Fire Insurance Company (Great American).
Great American, a foreign insurance company authorized to and doing business
in Louisiana, issued Mr. LeGros a policy of limited coverage on the vessel from June
2, 2000 to June 2, 2001. Crick was his retail agent. Thus, Mr. LeGros communicated
directly with Crick to obtain the policy, after which Crick contacted U.S. Risk, one of
the intermediate wholesale brokers with whom it had a contract, and informed U.S.
Risk of Mr. LeGros’ coverage needs. In turn, U.S. Risk communicated the
information it obtained from Crick to various insurance companies, with whom it
contracted, seeking a company that would agree to issue Mr. LeGros a policy. Great
American agreed to issue the policy which consisted of hull insurance and protection
and indemnity coverage. The policy contained the following “Trading Warranty:”
“PORT RISK OUT OF COMMISSION CAMERON, LA.”
At the time Mr. LeGros sought the policy on the M/V MISS ANGIE, it was in
port for repairs. Furthermore, he had been keeping it in port for a period of time

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before this because of his divorce. Nevertheless, Mr. LeGros alleges that he told the
Crick agent that the vessel would only be in port for a couple of weeks for repairs,
after which he intended to start fishing again. On the contrary, the Crick agent alleges
that Mr. LeGros knew that he was supposed to contact her before he took the vessel
out of port and that she was not aware that he was using it until she tried to reach him
to discuss the renewal of his policy and was informed that he was unavailable because
he was out fishing.
When Mr. LeGros returned, he completed the renewal application and gave it
to Crick. Crick submitted it to U.S. Risk, indicating that the delay in getting it to U.S.
Risk was due to Mr. LeGros’ being out fishing. Facsimile records indicate that U.S.
Risk passed along this information to Great American, at which time it, presuming
that Mr. LeGros had been using the vessel named in the policy for his fishing voyages,
told U.S. Risk that it would not be offering a renewal to Mr. LeGros, and, furthermore,
there was no existing coverage because the present policy was warranted “port risk.”
U.S. Risk informed Crick that Great American had declined to renew the policy and
that it attempted to get a quote from other companies, but they declined to offer
coverage. Whether Crick informed Mr. LeGros that his policy was not being renewed
is disputed. The fire occurred on June 5, 2001, three days after the end of the policy
term.
Mr. LeGros asserts that U.S. Risk breached its fiduciary duty to him. U.S. Risk
moved for summary judgment, asserting that it can have no liability under the policy
because it is not an insurer and that it can have no liability under a duty/risk analysis
because it owed no duty to Mr. LeGros. When the trial court denied U.S. Risk’s
motion, it applied for a supervisory writ to this court. It contends that it can have no
liability for Mr. LeGros’ loss, as a matter of law; thus, the trial court should have
dismissed it from the case.

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*****

DUTY

The policy, in question, is a marine insurance policy.1 Nevertheless, it is well
settled that Louisiana law governs any contract to procure insurance.2 U.S. Risk
asserts that an intermediate wholesale broker, such as itself, represents and is an agent
of the insurer, rather than the insured. Accordingly, it alleges that it can have no
liability to Mr. LeGros, as a matter of law.
“Whether an insurance broker, in a transaction, is acting as an agent of the
insured or the insurer in a transaction is a question of fact to be determined from the
particular circumstances of the case.”3 While the determination of whether a duty
exists is a question of law,4 the determination in the instant case depends on the
agency relationship between and among all of the parties. Whether an agency
relationship exists between parties is a question of fact and must be determined on the
particular circumstances in each case.5 Accordingly, this issue cannot be disposed of
on summary judgment.
Notwithstanding, U.S. Risk alleges that even if it had a duty to Mr. LeGros, it
consisted, only, of using reasonable diligence in attempting to place the insurance
requested and notifying the retail agent promptly in the event it is unable to do so, a
duty which U.S. Risk avers it fulfilled. However, breach of a duty is a question of
fact, dependent upon all the circumstances of a particular case and, therefore,
inappropriately determined on summary judgment.6

1
See La.R.S. 22:1379(9); See also Grubbs v. Gulf Int’l Marine, Inc., 625 So.2d
495 (La.1993).
2
Graham v. Milky Way Barge, Inc., 923 F.2d 1100 (5th Cir. 1991).
3
McManus v. S. United Fire Ins., 00-1456, p. 6 (La.App. 3 Cir. 3/21/01), 801
So.2d 392, 396-97 (citing Tiner v. Aetna Life Ins. Co., 291 So.2d 774 (La.1974);
Duhon v. Mid-American Cas. Co., 553 So.2d 1100 (La.App. 3 Cir. 1989)).
4
Roberts v. Benoit, 605 So.2d 1032 (La.1991).
5
Venable v. U.S. Fire Ins. Co., 02-505 (La.App. 3 Cir. 10/30/02), 829 So.2d
1179.
6
Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.
4/3/02), 816 So.2d 270.
3

Thus, Mr. LeGros should have the opportunity to demonstrate whether U.S.
Risk owed him a duty, and if so, whether it breached that duty, which breach resulted
in his failure to obtain insurance covering the vessel at the time of the loss and,
therefore, contributed to the damages his lack of coverage caused.
Accordingly, we deny U.S. Risk’s writ, finding that the trial court was correct
in denying summary judgment in its favor.

CONCLUSION

We agree with the trial court that disputed issues of material fact preclude U.S.
Risk’s dismissal on summary judgment. Therefore, we deny its writ. We assigns
costs to Applicant/U.S. Risk.

WRIT DENIED.

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