State of Louisiana v. Jonathon Wayne Aubrey

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-318

TOWANDA M. SAVOY

VERSUS

VONKERRI L. KELLY-DIXON, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20176458
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Shannon J. Gremillion, John E. Conery, and Candyce G. Perret,
Judges.

AFFIRMED.

Conery, J., dissents and assigns reasons.

John G. Swift
Donna R. Moliere
Swift & Rhoades, L.L.P.
930 Coolidge Boulevard
Lafayette, LA 70503
(337) 572-9877
COUNSEL FOR CROSS-CLAIM DEFENDANT/APPELLANT:
Lafayette City-Parish Consolidated Government

Barbara Bossetta
J. Scott Loeb
Loeb Law Firm
1180 West Causeway Approach
Mandeville, LA 70471
(985) 778-0220
COUNSEL FOR DEFENDANT/APPELLEE:
Esthay Enterprises, Inc.

Edwin G. Preis, Jr.
Preis, Kraft & Roy
102 Versailles Boulevard, Suite 400
Lafayette, LA 70509
(337) 237-6062
COUNSEL FOR DEFENDANT/APPELLEE:
National Union Fire Insurance Company of Pittsburgh, PA

Robert I. Siegel
Tucker T. Bohren
Gieger, LaBorde & Laperouse, L.L.C.
701 Poydras Street, Suite 4800
New Orleans, LA 70139-4800
(504) 561-0400
COUNSEL FOR DEFENDANT/APPELLEE:
National Union Fire Insurance Companyof Pittsburgh, PA

William H. Justice
Dana G. Hall
Derek M. Tanner
Tanner & Justice
2900 Westfork Drive, Suite 610
Baton Rouge, LA 70827
(225) 421-2737
COUNSEL FOR DEFENDANTS/APPELLEES:
Lyndon Southern Insurance Company
Vonkerri L. Kelly-Dixon

Michael J. Breaux
Law Office of Michael J. Breaux
Post Office Box 51106
Lafayette, LA 70505-1106
(337) 235-8000
COUNSEL FOR DEFENDANT/APPELLEE:
Louisiana Department of Transportation and Development

Heather N. Sharp
Kristopher T. Wilson
Lugenbuhl, Wheaton, Peck, Rankin & Hubbard
601 Poydras Street, Suite 2775
New Orleans, LA 70130
(504) 568-1990
COUNSEL FOR DEFENDANT/APPELLEE:
The Burlington Insurance Company

Gabe A. Duhon
Duhon & Broussard, L.L.C.
Post Office Box 478
Abbeville, LA 70511-0478
(337) 893-3423
COUNSEL FOR DEFENDANTS/APPELLEES:
Duhon & Broussard, L.L.C.
Gabe A. Duhon

G. W. Rudick, II
G. W. Rudick Injury Lawyers
100 Magnate Drive
Lafayette, LA 70508
(337) 326-4535
COUNSEL FOR PLAINTIFFS/APPELLEES:
Towanda M. Savoy
Towanda M. Savoy obo minor son, Lance Savoy

Eric D. Burt
Grant Herrin
Degan, Blanchard & Nash
5555 Hilton Avenue, Suite 620
Baton Rouge, LA 70808
(225) 610-1110
COUNSEL FOR DEFENDANT/APPELLEE:
Gulf Coast Teaching Family Services Inc.

James S. Broussard
Attorney at Law
100 South Louisiana Street, Suite 400
Abbeville, LA 70510
(337) 385-5500
COUNSEL FOR PLAINTIFFS/APPELLEES:
Towanda M. Savoy
Towanda M. Savoy obo minor son, Lance Savoy

GREMILLION, Judge.

Lafayette City-Parish Consolidated Government (LCG) appeals the summary

judgment granted in favor of The Burlington Insurance Company (Burlington). For

the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs filed suit for personal injury after Towanda Savoy’s 16-year-

old son, Lance, attempted to cross the median on a bicycle between the Evangeline

Thruway and Frontage Road in Lafayette and was struck by a car driven by Vonkerri

Kelly-Dixon. Plaintiffs sued the Louisiana Department of Transportation and

Development, LCG, and Esthay, LCG’s mowing contractor, alleging they failed to

properly mow the grass thereby obscuring the views of plaintiff and Kelly-Dixon.

LCG cross-claimed against Esthay and Burlington, Esthay’s insurer. Burlington

filed a motion for summary judgment, which the trial court granted following a

January 2022 hearing. LCG now appeals.

ASSIGNMENTS OF ERROR

LCG assigns as error:

1. The trial court erred in granting Burlington summary judgment
against LCG based on there being no coverage provided under
the Additional Insured endorsement of the Burlington policy.

2. The trial court erred in in [sic] failing to find that there were
disputed issues of material fact as to whether Esthay had an
ongoing obligation to mow the grass and hand trim vegetation in
the median area at issue that did not fall within the completed
operations/intended use exclusion in the Burlington policy.

3. The trial court erred in in [sic] failing to find that there were
disputed issues of material fact as to the parties’ intentions to
have LCG included as a “Blanket Additional Insured” as
evidenced by the relevant Certificates of Insurance? [sic]

4. The trial court erred in granting Burlington summary judgment
against LCG based on there being no coverage provided under
the Contractual Liability and contractual indemnitee provisions
of the Burlington policy.

5. The trial court erred in failing to find that LCG is entitled to
cross-claim for defense and indemnity against Burlington under
the Contractual Liability and contractual indemnitee provisions
in the Burlington policy both as a contractual indemnitee and/or
as a third party beneficiary.

DISCUSSION

The law pertaining to summary judgment was discussed by the
Louisiana Supreme Court in its per curiam opinion in Hines v. Garrett,
04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (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.

“[F]acts are material if they potentially insure or preclude
recovery, affect a litigant’s ultimate success, or determine the outcome
of the legal dispute.” Smith v. Our Lady of the Lake Hosp., Inc., 93-
2512, p.27 (La. 7/5/94), 639 So.2d 730, 751, (quoting South Louisiana
Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir. 1991), writs
denied, 596 So.2d 211 (La.1992) (alteration in original). 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.

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.

Thibodeaux v. Circle K Stores, Inc., 20-540, p. 2 (La.App. 3 Cir. 5/5/21), 318 So.3d

465, 467.

Insurance Policy Interpretation

Whether an insurance contract provides coverage is generally a legal question

ripe for summary judgment procedure. Motorola, Inc. v. Associated Indem. Corp.,

02-0716 (La.App. 1 Cir. 6/25/04), 878 So.2d 824, writs denied, 04-2314, 04-2323,
2

04-2326, 04-2327 (La. 11/19/04), 888 So.2d 207, 211, 212. However, summary

judgment relating to coverage questions should not be granted 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. at 829.

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

employing the general rules of interpretation of contracts. McQuirter v. Rotolo, 11-

188 (La.App. 1 Cir. 9/14/11), 77 So.3d 76. “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 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.

An insurer bears the burden of proving that an exclusion applies under the

policy. Louisiana Maint. Servs., Inc. v. Certain Underwriters at Lloyd’s of London,

616 So.2d 1250 (La.1993). Additionally, exclusionary clauses in insurance policies

are strictly construed. Calogero v. Safeway Ins. Co. of La., 99-1625 (La. 1/19/00),

753 So.2d 170. However, an insurance policy, including its exclusions, “should not

be interpreted in an unreasonable or strained manner so as to enlarge or to restrict its

provisions beyond what is reasonably contemplated by its terms or so as to achieve

an absurd conclusion.” Motorola, 878 So.2d at 829.

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The overarching issue in this appeal is whether the Burlington policy affords

LCG coverage via any number of claimed avenues. The trial court found that there

were no genuine issues that it did not and granted summary judgment in favor of

Burlington.

ASSIGNMENTS OF ERROR ONE AND TWO

Coverage as an Additional Insured-Completed Operations/Intended Use

The additional insured endorsements states (emphasis added):

ADDITIONAL INSURED- OWNERS, LESSEES OR
CONTRACTORS – AUTOMATIC STATUS WHEN
REQUIRED IN CONSTRUCTION AGREEMENT WITH YOU

This endorsement modifies insurance provided under the following:

COMMERICAL GENERAL LIABILITY COVERAGE PART

A. Section II – Who is An Insured is amended 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. Such person or
organization is an additional insured only with respect to liability for
“bodily injury,” “property damage” or “personal and advertising injury”
caused in whole or in part, by:

1. Your acts or omissions; or

2. The acts or omissions of those acting on your behalf;

In the performance of your ongoing operations for the additional insured.

However, the insurance afforded to such additional insured:

1. Only applies to the extent permitted by law; and

2. Will not be broader than that which you are required by the contract
or agreement to provide for such additional insured.

A person’s or organization’s status as an additional insured under this
endorsement ends when your operations for that additional insured are
completed.

B. With respect to the insurance afforded to these additional insureds, the
following additional exclusions apply:

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This insurance does not apply to:

....

2.“Bodily injury” or “property damage” occurring after:

a. All work, including materials, parts or equipment
furnished in connection with such work, on the project
(other than service, maintenance or repairs) to be
performed by or on behalf of the additional insured(s) at
the location of the covered operations has been completed;
or

b. That portion of “your work” out of which the injury or
damage arises has been put to its intended use by any
person or organization other than another contractor or
subcontractor engaged in performing operations for a
principal as a part of the same project.

We agree with the trial court’s finding that there is no genuine issue that LCG

is not an additional insured under the ongoing operations endorsement. This

endorsement applies to work actively being engaged in. For example, LCG would

be an additional insured if bodily injury occurred to a third party while Esthay was

actively mowing the grass in question. Under the undisputed facts of this case, the

grass cutting had been completed and put to its intended use, inasmuch as that term

can be used to describe cut grass. Otherwise, if the coverage was continuous as long

as Esthay was the mowing and maintenance contractor for LCG, there would be no

reason to purchase coverage for an additional insured.

The case relied upon by the trial court, James v. Hyatt Corp. of Delaware, 981

F.2d 810 (5th Cir.1993), addressed a nearly identical factual scenario where the sub-

contractor (Schindler) failed to name Hyatt as an additional insured and periodic

maintenance was required of the subcontractor. In James, the plaintiff was injured

in an elevator that Hyatt subcontracted with Schindler to maintain. Hyatt had a

contract with Schindler requiring it to be named an additional insured on Schindler’s

Hartford policy. Hyatt was not a named insured in the Comprehensive General

5

Liability Policy issued by Hartford as was required under the contract it had with

Schindler.

Hyatt was a named insured under the “Owners and Contractors Protective

Liability Policy” but was excluded from coverage because work on the elevator was

not “in progress” at the time of the accident. The James court stated:

The Hartford contends that James’ claims fall within exclusion
(b)(2), arguing that the OCPL policy covers only damage which occurs
while service or maintenance work is in progress. In effect, the policy
treats each act of servicing or maintenance as a discreet insurable event.
Schindler was not servicing or maintaining the escalator and the
escalator was being put to its intended use when James was injured.
Accordingly, this occurrence falls within the (b)(2) exclusion.

Exclusion (b)(2) is similar to the completed operations exclusion
found in many CGL policies. Completed operations exclusions
consistently have been held to be clear and unambiguous. Hyatt
contends that these completed operations exclusions cases are
inapposite. We do not agree. For example, in Rothman the exclusion
was applied to an air condition repair contractor. The Rothman court
found that the policy did not cover the claims against the contractor by
a homeowner whose residence was destroyed by fire shortly after the
contractor worked on his heating system. Because the repair was
complete when the fire began, the exclusion applied.

Id. at 813-14 (emphasis added) (footnotes omitted).

The James court concluded that Hartford had no duty to defend Hyatt under

the CGL or OCPL policy.

LCG is not an “additional insured” for purposes of coverage under the

Burlington policy because Esthay failed to name LCG as an additional insured and

Esthay was not in the process of mowing at the time the accident occurred.

LCG strenuously argues that, at the very least, there is a genuine issue of fact

whether the mowing had been put to its intended use inasmuch as it alleges that

“hand trimming” had not been completed by Esthay. LCG advanced this argument

at the hearing on the motion, and the trial court thoroughly questioned the parties on

6

the issue to determine if there was any genuine issue regarding the intended use

exclusion. LCG’s counsel argued:

. . . there’s definitely a genuine issue of fact as to whether or not
his operation was concluded, because the contract specifically states
and the affidavits state, once he does his mowing, he is, within twenty-
four hours supposed to follow up with the hand trimming. And he
hadn’t done yet done that, and so he didn’t complete his operations.

Burlington, on the other hand, argued that it was irrelevant under the exclusion

if the hand mowing had been completed by Esthay stating:

The twenty-four hours had passed. So if he had any intention of
going back out there and doing hand trimming, he would have done it
and he – there was – the job was complete, as far as Esthay Enterprises
was concerned. There was no going back out there until the next
mowing cycle.

So again, nobody is disputing that the last time that this median
was mowed was during the week of August 15th through August 22nd,
2017, which was a couple of weeks before this accident. Rather again,
they are accusing them of an omission rather than an affirmative act.

....

But poor work or not, Esthay’s work had ceased and had been
put back into use, and he wasn’t coming out there again until the next
mowing cycle.

Different counsel continued:

. . . to go back to this exclusion versus coverage, the insuring
agreement only insures whenever he is out there mowing. It doesn’t
matter whether he misses a streak of grass and – or anything like that.
If he is out there mowing, there is insurance.

They haven’t said that. Nobody disputes that he was not out
there mowing. . . .

Now, whether he did a good job, a poor job, whether he’s liable
to the plaintiffs in tort, whether he’s liable to LCG under the contract,
that’s for another day. We are just saying they are not additional
insured under this policy.

We agree. The issue of whether an omission or failure to do something

constitutes a continuing act for purposes of the intended use exclusion in order to

provide coverage for an additional insured has been addressed before. While a panel
7

of this court found that an omission creates a genuine issue of fact whether the

discreet event has been put to its intended use, a more recent panel of this court

pointed out the distinction of the named insured versus an additional insured in a

case against LCG. In Cormier v. Lafayette City-Parish Consolidated Government,

03-975, pp. 3-4 (La.App. 3 Cir. 2/11/04), 866 So.2d 395, 397, we stated (emphasis

added):

In Charles [v. LeBlanc, 93-871 (La.App. 3 Cir. 3/2/94), 633
So.2d 866, writ denied, 94-1314 (La. 9/2/94), 643 So.2d 148], a welder
who allegedly was negligent in performing repairs and inspections on
a trailer was sued by the driver. The welder filed a third party demand
against his insurer to enforce the policy and provide him a defense to
the driver’s claim. The trial court relied on Romero in refusing to grant
the insurer’s motion for summary judgment. A panel of this court
affirmed finding “the case sub judice is factually similar to Allstate v.
Romero, as it involves allegedly negligent omissions of the [welder] in
repairing and inspecting the vehicle involved in the accident.” Charles,
633 So.2d at 869.

LCG cited these two cases in the proceedings below and the trial
court found they were distinguishable. We agree. The difference
between the present case and Romero and Charles is that LCG is not
the named insured in the Northern policy with J.B. Talley. LCG is only
an additional insured by virtue of the indemnity provision set forth in
the policy, which specifically limits coverage to occurrences
predating“when the work was put to its intended use.”

Unlike Romero and Charles, this is not a case of an insurer
attempting to exclude coverage to its named insured. Section 11–F of
the Northern insurance policy provides the named insured (J.B. Talley)
the opportunity to extend coverage of the policy to a third party for a
specific limited period of time, in this case up to the date when the
“work was put to its intended use.” To hold as LCG requests would
force an insurer to provide coverage, for an indeterminable period of
time, to third parties based on a contract to which they were not privy.
Therefore, we find the trial court did not err in concluding the Northern
policy did not provide coverage to LCG. We note that our opinion in
this case is limited to LCG’s right to require Northern to provide
indemnity and a defense to LCG under its insurance policy with J.B.
Talley. It does not speak to the plaintiffs’ right to seek redress against
J.B. Talley and Northern.

We agree with the reasoning in Cormier. Otherwise, the intended use

exclusion is meaningless if every act of negligence by the insured creates an

8

additional insured regardless of whether the insured is actively engaged in the

activity for which it is had been contracted. This case is analogous to James in that

it is an allegation of a failure to do something, i.e., inspect the elevator or properly

maintain the grass in the median.

Burlington simply is not bound by the agreement made between Esthay and

LCG. This argument has been advanced by others and failed for the simple premise

that an insurance company does not gratuitously provide policies. See Lopez v.

Hartford Acc. & Indem. Co., 495 So.2d 375 (La.App. 3 Cir.), writs denied, 498 So.2d

757, 758 (La.1986), See also James, 981 F.2d 810.

This assignment of error is without merit.

ASSIGNMENT OF ERROR THREE

Parties’ Intentions

LCG spends a significant portion of its brief referring to the parties’ intentions

to add it as an “additional insured” under Esthay’s policy. It is a well-settled

principle of insurance contract law that parole evidence will not be allowed to prove

the parties’ intent:

Parole evidence cannot be introduced when the provisions of an
insurance contract are clear and explicit, and lead to no absurd
consequences; courts must enforce the contract as written.
La.Civ.Code art.2046. Furthermore, courts are prohibited from taking
parol evidence to explain or contradict the insurance contract’s clear
meaning. La.Civ.Code art. 1848. The Commercial Liability Policy is
an act under private signature; therefore, under La.Civ.Code art. 1983,
the insurance contract is full proof of the agreement and is the law
between the insured and insurer. The meaning and intent of the parties
must be sought within the four corners of the insurance contract and
cannot be explained or contradicted by parole evidence. La.Civ.Code
art. 1848.
Peterson v. Schimek, 98-1712, pp. 10-11 (La. 3/2/99), 729 So.2d 1024, 1032.

Furthermore, “Certificates of Insurance” issued by agents are not insurance

policies. The Certificate of Insurance issued by Burlington to Esthay specifically

stated in bold capital letters at the top of the form:
9

THIS CERTIFICATE IS ISSUED AS A MATTER OF
INFORMATION ONLY AND CONFERS NO RIGHTS UPON
THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES
NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND
OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW.

Louisiana Revised Statutes 22:881 pertains to the construction of insurance

policies and states that “Every insurance contract shall be construed according to the

entirety of its terms and conditions as set forth in the policy, and as amplified,

extended, or modified by any rider, endorsement, or applications attached to or made

part of the policy.” The terms of the certificate are very clear that it is for

informational purposes only and has no effect on the policy. See All Crane Rental

of Ga., Inc. v. Vincent, 10-116 (La.App. 1 Cir. 9/10/10), 47 So.3d 1024, writ denied,

10-2227 (La. 11/19/10), 49 So.3d 387; Citgo Petroleum Corp. v. Yeargin, Inc., 95-

1574 (La.App. 3 Cir. 2/19/97), 690 So.2d 154, writs denied, 97-1223, 97-1245 (La.

9/19/97), 701 So.2d 169, 170.

Accordingly, we are limited to the four corners of the insurance contract in

determining for what and to whom it affords coverage because parole evidence is

not allowed when the terms of the policy are clear and explicit, and a certificate of

insurance does not confer coverage.

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR FOUR

Coverage under the Contractual Liability and Contractual Indemnitee Provisions

The policy provides commercial general liability insurance according to the

following terms:

COMMERCIAL GENERAL LIABILITY COVERAGE PART

Paragraph 1. Insuring Agreement of Section I – Coverage A – Bodily
Injury and Property Damage Liability is replaced in its entirety with
the following:

10

1. Insuring Agreement

a. We will pay those sums that the insured becomes legally
obligated to pay as damages because of “bodily injury” or
“property damage” to which this insurance applies. We will have
the right and duty to defend the insured against any “suit”
seeking those damages. However, we will have no duty to
defend the insured against any “suit” seeking damages for
“bodily injury” or “property damages” to which this insurance
does not apply. . . .

....

COMMERCIAL GENERAL LIABILITY FORM

....

2. Exclusions

This insurance does not apply to:

....

b. Contractual Liability

“Bodily Injury” or “property damage” for which the insured is
obligated to pay damages by reason of the assumption of liability
in a contract or agreement. This exclusion does not apply to
liability for damages:

(1) That the insured would have in the absence of the
contract or agreement; or

(2) 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. Solely for the purposes of
liability assumed in an “insured contract”, reasonable
attorney fees and necessary litigation expenses
incurred by or for a party other than an insured are
deemed to be damages because of “bodily injury” or
“property damage”, provided. . . .

An “insured contract” is defined in the policy in part as:

f. 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 party to pay for “bodily
injury” or “property damage” to a third person or organization,
provided the “bodily injury” or “property damage” is caused, in
11

whole or in part, by you or by those acting on your behalf. However,
such part of a contract or agreement shall only be considered an
“insured contract” to the extent your assumption of the tort liability
is permitted by law. Tort liability means a liability that would be
imposed by law in the absence of any contract or agreement.

(Emphasis added).

The Mowing & Maintenance Contract entered into between Esthay and LCG

indeed contains subheadings relating to Esthay’s procurement of insurance and

indemnification in case of a lawsuit that read, in part, as follows:

ARTICLE 32 – CONTRACTOR’S INSURANCE AND
SUBCONTRACTOR’S INSURANCE

....

The Contractor and any Subcontractors performing Work under the
Contract shall be required to carry insurance as required herein.

....

The Contractor (and Subcontractors) shall effect and maintain until
final acceptance of the Work, insurance as follows:

....

II. Commercial General Liability Insurance – Coverage under this
policy must be provided on an “occurrence” basis, and not a “claims-
made” basis. THE LAFAYETTE CITY-PARISH CONSOLIDATED
GOVERNMENT, ITS OFFICIALS AND EMPLOYEES MUST BE NAMED AS AN
ADDITIONAL INSURED ON THE POLICY.

ARTICLE 52- INDEMNIFICATION

In the contract to be awarded, the Contractor does and will agree to
defend, indemnify, and hold forever harmless the Owner and their
respective employees, agents, representatives, officers, directors,
elected and appointed officials, and any and all other persons for whom
they may be deemed liable and/or answerable, to the extent permitted
by law, from and against any and all claims, demands, causes of action,
and/or rights of action arising out of or resulting from the performance
of any of the work and/or obligations contemplated under the Contract,
including, but not limited to, any and all claims for damages, losses,
expenses and/or attorney’s fees which result from any breach by the
Contractor of any of the terms, provisions, conditions, and/or
limitations of the contract, as well as any and all claims resulting from
the sole negligence, liability, strict liability, and/or fault of the
Contractor and/or the joint and/or concurrent negligence, liability, strict
12

liability, and/or fault of the Contractor with any other persons or parties
whomsoever.

....

Notwithstanding the aforesaid, nothing contained herein shall be
deemed to limit the obligations of any insurance company providing
coverage in accordance with the terms of this Contract to defend,
indemnify, and hold harmless the Owner, its employees, agents,
representatives, officers, directors, elected and appointed officials, and
any and all other persons or parties whomsoever to the full extent of
their insurance contract and/or as required by law.

LCG argues that the Burlington policy “also provides Contractual Liability

coverage pursuant to which LCG is owed defense and indemnity based on the

Mowing and Maintenance Contract herein being an ‘insured contract.’” This

statement would be true if “LCG” was replaced with “Esthay.” 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.

Again, the James court squarely addressed this same issue:

Under Louisiana law an insurer has no duty to defend one who
is not a named insured. In Musgrove [v. Southland Corp., 898 F.2d
1041 (5th Cir.1990)] Lopez [v. Hartford Accident & Idem. Co., 495
So.2d 375 (La.App. 3 Cir.), writs denied, 498 So.2d 757, 758
(La.1986)]; and Ordonez [v. W.T. Grant Co., 297 So.2d 780 (La.App.4
Cir. 1974)], the insureds each contractually agreed to provide liability
insurance covering a third party but failed to do so. In each instance
the court found that the insurer had no duty to defend the third party.
13

In Ordonez the court held that the insurer had no duty to defend that
contractual indemnitee of its insured. Under the contractual liability
provision of the policy at issue therein, the insurer’s exposure was
“limited to damages for which the named insured becomes liable as a
result of a contractual agreement to indemnify or hold harmless. In the
case at bar, James’ complaint stated a claim for which Schindler
ultimately could have been held liable under the indemnity agreement;
as a result the contractual liability provision required The Hartford to
defend its insured-Schindler. But the Hartford had no concomitant duty
to defend Hyatt under the CGL policy.

James, 981 F.2d 810 at 813 (emphasis added) (footnotes omitted).

LCG relies heavily on Rogers v. Integrated Explorations and Prod., LLC, 18-

425 (La.App. 4 Cir. 2/20/19), 265 So.3d 880, writ denied, 19-481 (La. 5/20/19), 271

So.3d 198, for the proposition that it is covered under the “insured contract”

provision. Rogers is inapplicable to the facts at hand. In Rogers, the parties had

reciprocal agreements to indemnify each other and the policy in question named the

additional insured, Integrated (unlike here). Integrated’s contract with Valerus

included a provision addressing Integrated’s master contract service agreement

(MCSA), which stated that any other parties Integrated subcontracted with were

included in the “Group” of persons to be covered under the Zurich policy carried by

Valerus. While Coastal Marine, Integrated’s subcontractor, was not named as an

additional insured, the court in Rogers found the MCSA was an “insured contract”

which covered Coastal Marine because:

Valerus obligated itself in the MCSA to defend and indemnify
Integrated and Coastal Marine, regardless of fault, against claims by
Valerus employees, including Dustin Rogers, and to secure insurance
in the amounts required by the MCSA. Valerus then procured primary
and excess insurance policies from Zurich and AGLIC, respectively,
which named Integrated as an additional insured, and which covered
contractual liability over written contracts, namely, “insured contracts”
including the MCSA.

Id. at 894.

In Rogers, Integrated was named as an additional insured under Valerus’s

policy. Even so, we find the Rogers court erred, and we decline to follow it. Rogers
14

inappropriately, in our opinion, extends who should be included as a “named insured”

by association with an additional insured based on a contract (the MCSA) that the

insurance company is not privy to.

In its reply brief, LCG attempts to distinguish the Burlington policy from

Ordonez v. W.T. Grant, by stating that under the Burlington policy, “coverage is

extended to any contractual obligation you have agreed to assume [for] the tort

liability of another party. Esthay, the named insured, in an insured contract,

contractually agreed to assume tort liability alleged against LCG.” (Emphasis added).

This ignores the plain language of the section referencing “the insured.” Section 2(b)

of the policy states that the insurance does not apply to bodily injury or property

damage for which the insured is obligated to pay because the insured assumed

liability in a contract or agreement. The exception when the exclusion does not

apply is to liability incurred by an insured due to an “insured contract” it has entered

into for damages.

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
15

extends to the named insured, Esthay, when it must indemnify another party due to

its tort liability.

Coverage under Supplemental Payments

Additionally, LCG argues that Burlington’s policy further recognizes

coverage is afforded to the “indemnitee” of an “insured” in that part of the policy

addressing “Supplementary Payments – Coverages A and B.” It bases this argument

on Section 2, subheadings a, b, and c, which state:

2. If we defend an insured against a “suit” and an indemnitee of the
insured is also named as a party to the “suit,” we will defend that
indemnitee if all of the following condition are met:

a. The “suit” against the indemnitee seeks damages for which the
insured has assumed the liability of the indemnitee in a contract
or agreement that is an “insured contract”;

b. This insurance applies to such liability assumed by the insured;

c. The obligation to defend, or the cost of the defense of, that
indemnitee, has also been assumed by insured in the same
“insured contract”;

Notwithstanding that the first sentence refers to “an indemnitee of the insured,”

there is no indication in the remaining conditions that an indemnitee becomes an

insured by virtue of the supplementary payments section. In order for the insurer to

agree to defend the indemnitee under this section, the remainder of the section

requires:

d. The allegations in the “suit” and the information we know about
the “occurrence” are such that no conflict appears to exist between
the interests of the insured and the interests of the indemnitee;

e. The indemnitee and the insured ask us to conduct and control the
defense of that indemnitee against such “suit” and agree that we
can assign the same counsel to defend the insured and the
indemnitee; and

f. The indemnitee:

(1) Agrees in writing to:

16

(a) Cooperate with us in the investigation, settlement or
defense of the “suit”,

(b) Immediately send us copies of any demands, notices,
summonses or legal papers received in connection with the
“suit”;

(c) Notify any other insurer whose coverage is available to the
indemnitee; and

(d)Cooperate with us with respect to coordinating other
applicable insurance available to the indemnitee; and

(2) Provide us with written authorization to:

(a) Obtain records and other information related to the “suit”,
and conduct and control the defense of the indemnitee in
such “suit”.

(b) Conduct and control the defense of the indemnitee in such
“suit”.

So long as the above conditions are met, attorneys’ fees incurred by us
in the defense of that indemnitee, necessary litigation expenses incurred
by us and necessary litigation expenses incurred by the indemnitee at
our request will be paid as Supplementary Payments.
Nothwithstanding the provisions of Paragraph 2.b.(2) of Section I-
Coverage A – Bodily Injury and Property Damage Liability, such
payments will not be deemed to be damages for “bodily injury” and
“property damage” and will not reduce the limits of insurance.

Our obligation to defend an insured’s indemnitee and to pay for
attorney’s fees and necessary litigation expenses as Supplementary
Payments ends when we have used up the applicable limit of insurance
in the payment of judgments or settlements or the conditions set forth
above, or the terms of the agreement described in Paragraph f. above,
are no longer met.

This section sets forth very specific requirements for the insurer to defend the

insured’s indemnitee, which have not been met in this case. The plain language

gives no indication that an indemnitee becomes an insured if the insurer defends the

indemnitee pursuant to this section. Owing a defense to an indemnitee when certain

conditions are met does not equate to being an insured under the policy. This

assignment of error is without merit.

17

ASSIGNMENT OF ERROR FIVE

Coverage under third party beneficiary-stipulation pour autri

Again, LCG relies on Rogers, 265 So.3d 880, for its claim that it is a third-

party beneficiary of Esthay’s contract with Burlington. The Rogers court did find

that Coastal Marine was a:

third party beneficiary of the Zurich policy as Integrated’s
subcontractor. Coastal Marine is not an unintended beneficiary of the
Zurich policy. Rather, the MCSA contemplates that Coastal Marine is
intended to be covered for its defense and indemnification. Though
Coastal Marine is not specifically named as an insured in the Zurich
policy, it would be entitled to sue Zurich.

Id. at 897.

Under Louisiana law, a contract for the benefit of a third party is
referred to as a stipulation pour autrui. See, e.g. Whitney National Bank
v. Howard Weil Financial Corp.,93–CA–1568 (La.App. 4th Cir.
1/27/94), 631 So.2d 1308, 1310.

“In order to establish a stipulation pour autrui there must be a
clear expression of intent to benefit the third party. The third party
relationship must form the consideration for a condition of the contract;
the benefit may not be merely incidental to the contract.” State, In re
Adoption of S.R.P., 555 So.2d 612, 618 (La.App. 4th Cir.1989), writ
denied, 556 So.2d 1288 (La.1990). A contract, in order to constitute a
stipulation pour autrui, must be “in writing and clearly manifest an
intention to confer a benefit upon a third party”. DePaul Hospital v.
Mutual Life Ins. Co., 487 So.2d 143, 146 (La.App. 4th Cir.1986).

Concept Design, Inc, v. J.J. Krebs & Sons, Inc., 96-1295, p. 5 (La.App. 4 Cir.

3/19/97), 692 So.2d 1203, 1205-06.

For the same reasons noted above, we find that LCG is not a third-party

beneficiary of the Burlington policy. The Rogers court again noted that even though

Coastal Marine was not a named insured, it would receive the benefits of the Zurich

policy because it was a third-party beneficiary ignoring the fact that Zurich had no

part in the MCSA contract entered into by Integrated and Coastal Marine. The

contract entered into between Esthay and LCG has no effect on Burlington. If every

indemnitee was a “third-party beneficiary” to a commercial liability policy then
18

there would be no reason to have an additional named insured. Insurance companies

cannot be bound to carry extra insureds for no additional premiums paid.

Accordingly, this assignment of error is without merit.

CONCLUSION

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

Burlington Insurance Company is affirmed as there are no genuine issues of fact that

Burlington’s policy does not provide coverage to the Lafayette City-Parish

Consolidated Government because it is not a named insured and is not an additional

insured due to the completed/intended use exclusion. Nor does the Lafayette City-

Parish Consolidated Government have an “insured contract” with Burlington;

Esthay does. Costs of this appeal in the amount of $11,602.95 are assessed against

the Lafayette City-Parish Consolidated Government.

AFFIRMED.

19

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-318

TOWANDA M. SAVOY

VERSUS

VONKERRI L. KELLY-DIXON, ET AL.

CONERY, Judge, dissenting.

I respectfully disagree with the majority opinion as I conclude that genuine

issues of material fact remain as to whether Lafayette City-Parish Consolidated

Government was an “additional insured” under The Burlington Insurance Company

policy.

Most notably, I find that questions remain as to whether Esthay Enterprises,

Inc. completed its cycle of work at the jobsite. I find no jurisprudential authority

that the Burlington policy’s “ongoing operations” endorsement equates to active

operations on the jobsite. Rather, the Burlington policy requires only that the

operations are ongoing until “complete.”

Here, the pertinent “Specification & Contract Documents” controlling

Esthay’s work for LCG called for Esthay not only to “mow” but to “trim” as well.

Section IV, titled “Specifications – Maintenance Mowing,” provides, in part:

Mowing and Trimming

....

Hand trimming is required around all fixed objects such as sign posts,
delineators, culvert ends, trees, shrubs, plants, guard rails, culvert head
walls, bridge abutments, bridge or overpass columns and piling, and
fences where the Contractor is required to mow on both sides due to the
presence of service roads or other facilities, etc., as directed by the

Project Coordinator. Trimming shall follow the mowing operation by
no more than 24 hours.

(Emphasis in the original.) The specifications further detailed that because certain

areas within the defined “[m]owable areas … may not be accessible to standard

mowing equipment and may require hand trimming or specialized mowing

equipment such as boom or side mount mowers.”

Again, the Burlington policy affords coverage to an additional insured until

Esthay’s “operations for that additional insured are completed.” There is no

suggestion in that policy language that the operations are completed merely because

the insured performs only part of its contracted task and leaves the work site. In this

case, the question remains whether Esthay timely returned to the jobsite to complete

the contracted task by hand trimming the site. It is alleged that the weeds Esthay

failed to trim caused visual obstructions to both the minor child as he emerged from

the overgrown grass on the median and to the oncoming driver, contributing to the

minor child being struck by the oncoming vehicle and causing his injuries. Whether

Esthay timely did so or even intended to do so before the next mowing cycle

commenced is, in my opinion, irrelevant to the policy language. Simply, it is alleged

that Esthay’s task was not “completed” and, therefore, a question remains as to

whether the work cycle was ongoing.

This particular scenario differs from the policy language and factual scenario

presented in Cormier v. Lafayette-City Parish Consolidated Government, 03-975

(La.App. 3 Cir. 2/11/04), 866 So.2d 395 as referenced by the majority. While

Cormier stands for the proposition that an insurer will not be held to provide

coverage for an indeterminable period of time to third parties who are not part of the

insurance contract, the policy in Cormier, like here, excluded coverage to a

2

purported additional insured after the contracted work was put to its “intended use.”

The additional insured in Cormier, however, had in fact accepted the completed

work. Thus, the trial court in Cormier found that the work had been put to its

intended use and that there was no coverage. The ruling was maintained on appeal.

Id.

Conversely in this case, LCG challenges whether Esthay’s “operations” were

“completed” due to their failure to return to the jobsite for hand trimming.

Moreover, a recurring mowing cycle differs from the type of single, discrete road

project at issue in Cormier.

Accordingly, I find that a reversal is appropriate and respectfully dissent.

3