Tabitha Wroten, Guardian for Martha Deen v. Ferriday Auto Ventures, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-387 consolidated with 20-102

TABITHA WROTEN, GUARDIAN FOR MARTHA DEEN

VERSUS

FERRIDAY AUTO VENTURES, LLC,
D/B/A LAKESIDE FORD AND BRYAN JACKSON

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 51433 A
HONORABLE KATHY JOHNSON, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Jonathan W. Perry,
Judges.

REVERSED.

Charles S. Norris, Jr.
Christopher J. Norris
Norris Law Firm, LLC
P.O. Box 400
8 North Oak Street
Vidalia, LA 71373
(318) 336-1999
COUNSEL FOR PLAINTIFF/APPELLANT:
Tabitha Wroten, Guardian For Martha Deen

Joseph A. Boothe
Smith, Taliaferro & Purvis
P.O. Box 298
407 Mound Street
Jonesville, LA 71373
(318) 336-5526
COUNSEL FOR DEFENDANTS/APPELLEES:
Ferriday Auto Ventures, LLC d/b/a Lakeside Ford
Bryan Jackson

H. Minor Pipes, III
Stephen L. Miles
Patrick J. Lorio
Pipes, Miles, Beckman, LLC
1100 Poydras Street, Suite 1800
New Orleans, LA 70163
(504) 322-7070
COUNSEL FOR DEFENDANT/APPELLEE:
Wesco Insurance Company

GREMILLION, Judge.

The appellant, Tabitha Wroten, Guardian for Martha Deen, appeals the trial

court’s judgment granting summary judgment in favor of Wesco Insurance

Company, the insurer of defendant, Ferriday Auto Ventures, LLC d/b/a as Lakeside

Ford. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On April 5, 2018, Deen purchased a Hyundai Accent from Lakeside Ford. In

her petition for damages filed on April 20, 2018, Wroten claims that she made it

clear to the Lakeside employee, Bryan Jackson, that because Deen was not able to

make financial decisions, she would accompany Deen for the final sale of the vehicle.

Wroten alleged that Lakeside Ford took advantage of an elderly and mentally infirm

person; failed to adequately train, supervise, and hire its employees; obtained the

sale of a movable by deception and unfair trade practices; converted Deen’s trade-

in vehicle; and failed to exercise reasonable care under the circumstances, resulting

in inconvenience, humiliation, mental anguish, loss of use of her vehicle, diminished

value of her vehicle, and general damages. Wroten claims that the salesman, Jackson,

told Deen that he had spoken to Wroten and that she had approved the sale, when,

in fact, he had not spoken with Wroten.

According to her petition, despite Wroten and Deen returning to the dealership

as soon as Wroten returned to town, less than twenty-four hours after the sale was

confected, Lakeside refused to rescind the sale and return Deen’s trade-in vehicle.

Deen delivered the Hyundai she purchased to Lakeside. The pair returned the

following day to demand that the trade-in vehicle be returned, but Lakeside refused.

On Monday, April 9, 2018, Wroten returned to Lakeside Ford with a note from

Deen’s physician stating that she did not have the capacity to make financial

decisions, but Lakeside refused to rescind the deal.

In her first amended petition, Wroten alleged that Lakeside “intentionally

misrepresented material facts to Ms. Deen on April 5, 2018, pressuring her into

signing the alleged auto contract documents under duress.” She sought rescission of

the sale due to lack of capacity and lack of consent since there was no meeting of

the minds. In her second amended petition, Wesco was made an additional

defendant. Wesco filed an answer and affirmative defenses to Wroten’s petition.

On September 3, 2019, Wesco filed a motion for summary judgment, arguing

that the intentional acts exclusion of its policy applied to provide no coverage for

Wroten’s claims because there was no “accident” as defined by its policy, and the

policy excludes intentional acts. It attached the insurance policy to its motion.

On November 5, 2019, Wroten filed an opposition to Wesco’s motion for

summary judgment. Attached to its opposition were excerpts from Deen’s deposition,

the deposition of Kenneth Ray Binns, Ph.D., excerpts from the deposition of Jackson,

and excerpts from the deposition of Lawrence Vaughn, the sales manager at

Lakeside Ford.

On November 14, 2019, Wesco filed a reply in support of its motion for

summary judgment. It attached the depositions of Wroten and Deen to its reply

memoranda. On November 18, 2019, Wroten filed a motion to strike Wesco’s

exhibits to its reply brief under La.Code Civ.P. art. 966B(3). The trial court struck

Wroten’s deposition from the record but allowed Deen’s deposition. Wroten applied

for supervisory writs from the trial court’s oral rulings of November 21, 2019, which

granted Wesco’s summary judgment and partially granted Wroten’s motion to strike

exhibits.

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The trial court’s written judgment, filed December 5, 2019, granted summary

judgment in favor of Wesco and dismissed Wroten’s claims against it. Wroten now

appeals and assigns as error:1

1. The trial court erred in granting defendant Wesco’s motion for
summary judgment as to insurance coverage; and

2. The trial court erred in partially granting Plaintiff’s motion to strike
exhibits in defendant Wesco’s reply brief.

DISCUSSION

The law pertaining to summary judgment was discussed by the Louisiana

Supreme Court in its opinion in Hines v. Garrett, 04-806, pp. 1-2 (La. 6/25/04), 876

So.2d 764, 765 (per curiam) (alteration in original):

We review a district court’s grant of summary judgment de novo,
viewing the record and all reasonable inferences that may be drawn
from it in the light most favorable to the non-movant. Summary
judgment is warranted only if “there is no genuine issue as to material
fact and [ ] the mover is entitled to judgment as a matter of law.”
La.Code Civ.Proc. art. 966(C)(1). In ruling on a motion for summary
judgment, the judge’s role is not to evaluate the weight of the evidence
or to determine the truth of the matter, but instead to determine whether
there is a genuine issue of triable fact. All doubts should be resolved in
the non-moving party’s favor.

A fact is material if it potentially ensures or precludes recovery, affects a

litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v.

Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. A genuine

issue is one as to which reasonable persons could disagree; if reasonable persons

could reach only one conclusion, there is no need for trial on that issue and summary

judgment is appropriate. Id.

1
This docket number 20-387 was a writ application (docket number 20-103) that was
converted to an appeal, docket number 20-103 (grant of summary judgment dismissing Wesco
Insurance Company was a final, appealable judgment). This appeal (20-387) is consolidated with
docket number 20-102, which was a writ pertaining to a partial grant of a motion to strike, that we
ordered consolidated with this appeal.
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Whether a fact is material is determined in light of the relevant substantive

law. Weingartner v. La. IceGators, 02-1181 (La.App. 3 Cir. 4/17/03), 854 So.2d

898, writ denied, 03-1388 (La. 9/19/03), 853 So.2d 645. “[I]nterpretation of an

insurance policy is a question of law,” and we have “authority to construe the

provisions of the policy in order to resolve questions of coverage.” Stoute v. Long,

98-683, p.8 (La.App. 3 Cir. 12/9/98), 722 So.2d 102, 107.

“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. “A contract executed in a standard form of one party must be interpreted,

in case of doubt, in favor of the other party.” La.Civ.Code art. 2056. If an

exclusionary clause is deemed ambiguous, an insurance policy must be liberally

construed in favor of coverage; provisions susceptible of different meanings must be

interpreted to render coverage effective rather than ineffective. La.Civ.Code art.

2049; see Capital Bank & Trust Co. v. Equitable Life Assurance Soc’y, 542 So.2d

494 (La.1989). If more than one reasonable view of the exclusion provision exists,

“any ambiguity must be construed against the insurance company and in favor of the

reasonable construction that affords coverage.” RPM Pizza, Inc. v. Auto. Cas. Ins.

Co., 601 So.2d 1366, 1369 (La.1992).

THE POLICY

The intentional acts exclusion relied upon by Wesco states:

This insurance does not apply to the following:

1. Expected or Intended Injury

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“Bodily Injury” or “property damage” expected or intended from the
standpoint of the insured.[2]

Lakeside argues that the exclusion applies from the standpoint of the claimant

and that since Wroten argues that the Jackson intentionally misled Deen, no

coverage is available. Lakeside argues that the unambiguous policy language clearly

excludes that which Wroten alleges: that Jackson intentionally took advantage of

Deen. Wroten, on the other hand, argues that the exclusion applies from the

standpoint of the insured. And since Lakeside Ford and Jackson deny all

wrongdoing, the intentional exclusion does not apply.

The trial court did not provide reasons for its decision. The facts that are

undisputed in this case are that Jackson sold Deen a vehicle and accepted her car as

a trade-in. According to Wroten, this sale took advantage of Deen in a number of

ways. According to Jackson, he had no indication that Deen was unable to complete

the sale. The genuine issue of fact in this case is what Jackson’s intent truly was,

which cannot be summarily determined for purposes of determining insurance

coverage under this policy. A full hearing on the merits will be necessary to discern

if Jackson intended the damage that Wroten alleges. The plain language of the policy

provision excluding coverage states that coverage is excluded for injury expected or

intended by the insured. We cannot say what Jackson intended because there is no

evidence in the record that allows us to make that determination.

In its reply in support of its motion for summary judgment, Wesco states,

“Taken to its conclusion, Plaintiff is arguing that an insurance policy’s intentional

act exclusion could never apply to bar coverage for a plaintiff’s third-party insurance

claim unless the insured admits fault and liability.” This is precisely the reason why

2
We note that, although the issue of whether “bodily injury” or “property damage”
resulting from an “accident” according to the terms of the policy were mentioned in Wesco’s
motion, summary judgment was granted pursuant to the intentional act exclusion.
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the intent of the alleged tortfeasor must be determined other than through summary

judgment. This case does not contain facts supporting an intentional act exclusion

that require little to no further analysis such as assault, battery, sexual assault and

the like, of which there are many cases enforcing the exclusion. Even in cases

involving physical aggression, when the intent to injure is obvious, courts have

refused to apply the exclusion until it can be determined the degree of injury the

tortfeasor intended. See Breland v. Schilling, 550 So.2d 609 (La.1989). An injury

resulting from the more subtle act of coercive behavior or mental manipulation is,

necessarily, going to require a fact intensive determination of intent.

A panel of this court recently explained why summary judgment is not

appropriate under facts such as these where intent is a central issue in the case:

Summary judgment may be rendered on the issue of insurance
coverage alone. See Romano [v. Altentaler, 2011-0303 (La.App. 1st Cir.
9/14/11), 77 So.3d 282] at 284. However, summary judgment declaring
a lack of coverage under an insurance policy may not be rendered
unless there is no reasonable interpretation of the policy, when applied
to the undisputed material facts shown by the evidence supporting the
motion, under which coverage could be afforded. Id. Because it is the
applicable substantive law that determines materiality, whether a
particular fact in dispute is material can be seen only in light of the
substantive law applicable to this case. Jarrell v. Travis, 2004-0117
(La.App. 1 Cir. 2/11/05), 906 So.2d 551, 553.

Summary judgment is rarely appropriate for disposition of a case
requiring judicial determination of subjective facts such as intent,
motive, malice, good faith, or knowledge. Id. But, an exception is
recognized when no genuine issue of material fact exists concerning the
relevant intent or motive, and the only issue to be decided is the ultimate
conclusion to be drawn from the uncontested material facts. See
Romano, 77 So.3d at 284. However, the issue of subjective intent is fact-
intensive and is an issue to be determined by the totality of the
circumstances examined on a case-by-case basis. Inzinna v. Walcott,
2002-0582 (La.App. 1st Cir. 11/21/03), 868 So.2d 721, 726. See also
Baggett v. Tassin, 09-803 (La.App. 5 Cir. 3/23/10), 39 So.3d 666, 670-
671.

Wise v. O’Neil, 20-3, p. 7 (La.App. 3 Cir. 6/17/20), 299 So.3d 185, 190-91

(quoting Estes v. St. Tammany Par. Sch. Bd., 12-1750, pp. 5-6 (La.App. 1 Cir.

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6/7/13), 118 So.3d 1264, 1266-68, writ denied, 13-1946 (La. 11/8/13), 125 So.3d

457). Accordingly, the subjective intent of Jackson in selling Deen the vehicle is a

critical issue in determining whether the exclusion applies and must be decided by

the trier of fact. Id. The trier of fact must consider all the facts and circumstances

of a particular situation to determine intent. Id. Jackson’s intent cannot be

ascertained from the pleadings alone under this fact scenario.

Wroten’s second assignment of error pertains to the exclusion of her

deposition from Wesco’s reply, but not Deen’s. Louisiana Code of Civil Procedure

Article 966(B)(3) currently states: “Any reply memorandum shall be filed and

served in accordance with Article 1313 not less than five days prior to the hearing

on the motion. No additional documents may be filed with the reply memorandum.”

Wesco’s reply memorandum included Deen and Wroten’s depositions, which had

been taken on October 14, 2019, nearly six weeks after Wesco filed its summary

judgment. The trial court struck Wroten’s deposition but allowed Deen’s deposition.

We find this issue immaterial to our determination. Including or excluding the

depositions does not change the fact that Jackson’s intent cannot be determined

without further proceedings. We find summary judgment was inappropriately

granted. Accordingly, we reverse the grant of summary judgment in favor of Wesco

and remand for proceedings consistent with this opinion.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of Wesco

Insurance Company is reversed, and it is assessed with all costs of this appeal.

REVERSED.

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