scott @ wolfelaw. (866)761-8934 Louisiana Bar No. … · Company of Ameica 4821 Prytania Street...

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UR

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ITC

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ILED

JUL-3 2008

0£RIN

RE

: Cout of A

ppeal No. 2008-C

A-0438

BO

TT

OM

LINE

EQ

UIP

ME

NT

, LLC

Versus

SM

ITH

& A

SS

OC

IAT

ES

CO

NS

ULT

ING

, LLC, E

TA

L

(29th Judicial Distict C

out, Paish of S

t. Charles, N

O. 64,966, "C

")

Appeal from

the 29th Judicial Distict C

out, Honorable E

mile R

. St. P

ierre,

Presiding C

ivil Action N

o. 64,966, a Civil P

roceeding, on Appeal

Oiginal B

ief of Appellant, B

ottom Line E

quipment, L.L.C

.

Counsel for A

ppellant:C

ounsel for Appellee:

Scott G

. Wolfe, Jr.

Traveler's P

ropety Casualty

Wolfe Law

Group, L.L.C

.C

ompany of A

meica

4821 Prytania S

treetP

ierce A. H

amm

ond, II

New

Orleans, Louisiana 70115

650 Poydras S

t.

(504) 894-9653S

uite 1400

Fax:

(866)761-8934N

ew O

rleans, LA 70130

scott @ w

olfelaw.

com(504) 299-3458

Louisiana Bar N

o. 30122F

ax: (504) 299-3491

Louisiana Bar N

o. 18076

BR

IEF

OF

AP

PE

LLAN

T

Appeal from

the 29th Judicial District C

ourt for the Parish of S

t. Charles,

Honorable Judge E

mile R

. St. P

ierre, Presiding C

ivil Action N

o. 64,966.

I. Table of C

ontents

TA

BLE

OF

CO

NT

EN

TS

1

TA

BLE

OF

AU

TH

OR

ITIE

S2

ST

AT

EM

EN

T O

F JU

RIS

DIC

TIO

N6

ST

AT

EM

EN

T O

F T

HE

CA

SE

7

INT

RO

DU

CT

ION

7

AC

TIO

N O

F T

HE

TR

IAL C

OU

RT

7

AS

SIG

NM

EN

T O

F E

RR

OR

S8

ISS

UE

S P

RE

SE

NT

ED

FO

R R

EV

IEW

9

LEG

AL A

RG

UM

EN

T10

ER

RO

R 1 -T

HE

AP

PE

LLEE

'S M

OT

ION

FO

R10

SU

MM

AR

Y JU

DG

ME

NT

IS U

NT

IME

LY

ER

RO

R 2 - T

HE

RE

EX

IST

S A

GE

NU

INE

ISS

UE

OF

22M

AT

ER

IAL F

AC

T A

S T

O C

OV

ER

AG

EF

OR

TH

E 70 X

T

ER

RO

R 3 - T

HE

RE

EX

IST

S A

GE

NU

INE

ISS

UE

30O

F M

AT

ER

IAL F

AC

T A

S T

O C

OV

ER

AG

EF

OR

RE

PLA

CE

ME

NT

VA

LUE

ER

RO

R 4 - T

HE

RE

EX

IST

S A

GE

NU

INE

ISS

UE

35

OF

MA

TE

RIA

L FA

CT

TH

AT

AP

PE

LLEE

Page 1 of40

HA

S O

R H

AD

OT

HE

R D

UT

IES

TO

AP

PE

LLAN

TU

ND

ER

CO

NT

RA

CT

WH

ICH

RE

MA

INU

NS

AT

ISF

IED

ER

RO

R 5 - A

PP

ELLA

NT

ST

ILL HA

S A

CT

ION

38U

ND

ER

CO

NT

RA

CT

AN

D T

OR

T LA

WW

HIC

H W

AS

NO

T O

BS

ER

VE

D O

R D

EC

IDE

DB

Y T

HE

TR

IAL C

OU

RT

CO

NC

LUS

ION

39

CE

RT

IFIC

AT

E O

F S

ER

VIC

E40

EX

HIB

ITS

40

II.T

able of Authorities

CO

DE

AR

TIC

LES

:Local R

ule 9.1011

La. C.C

.P. A

rt. 89129

La. C.C

.P. A

rt. 96610,

11,18,

19,22,30

La. C.C

.P. A

rt. 96711

La. C.C

. Art. 2045-6

34

La. C.C

. Art. 2056

26,34

La. C.C

. Art. 2320

28

La. Rev. S

tat. Ann. §22:1220

37

La. C.C

.P. A

rt. 1915(B)(2)

38

CA

SE

LAW

:

Alfordv. S

tate Farm

Auto. Ins. C

o., La. App. 31763, 734 S

o. 2d 1253,....28

Page 2 of 40

1999 La. App. LE

XIS

1322 (La.App. 2 C

ir. May 5 1999),

writ denied by La. 99-1595, 747 S

o. 2d 548, 1999 La. LEX

IS 2318

(La. Sept. 3, 1999)

Arroyo v. E

. Jeferson Gen. H

osp., La.App. 06-799, 956 S

o. 2d 661,28

2007 La. App. LE

XIS

463 (La.App. 5 C

ir. Mar. 13 2007),

writ denied by 957 S

o. 2d 179, 2007 La. LEX

IS 1360 (La. 2007)

Broom

v. Leebron & R

obinson Rent-A

-Car, Inc., A

pp. 2 Cir.

11

City of N

ew O

rleans v. How

enstine, 98-2157 (La. App. 4 C

ir. 5/5/99),....38

737 So. 2d 197

Cotton v. W

al-Mart S

tores, Inc., 552 So. 2d 14, 18

34

(La. App. 3 C

ir. 1989)

Daniel v. B

laine Kern A

rtists, Inc., App. 4 C

ir.1996, 681 So.2d

12

19, 1996-1348 (La.App. 4 C

ir. 9/11/96), writ denied 684 S

o.2d 934,

1996-2463 (La. 12/6/96);

1993, 626 So.2d 1212.

Davis v. A

merican H

eritage Life Insurance Co., 35,153

27

(La. App. 2d C

ir. 10/31/01), 799 So. 2d 705

Dealv. H

ousing Authority of N

ew O

rleans, 98-153039

(La. App. 4 C

ir. 2/17/99), 735 So. 2d 685, w

rit denied,

99-0728 Pg 2 (La. 6/18/99), 745 S

o. 2d 2

Doe v. A

BC

Corp., A

pp. 4 Cir. 2001, 790 S

o.2d 136, 2000-1905,21

Page 3 of 40

2000-1906 (La.App. 4 C

ir. 6/2, 2000-1906 La.App. 4 C

ir. 6/27/01,

writ denied 801 S

o.2d 377, 2001-2207 (La. 11/9/01)

Durrosseau v. C

entury 21 Flavin R

ealty, Inc., App. 3 C

ir.1992,18

594 So.2d 1036

Gedw

ardv. Sonnier, 98-1688 (La. 3/2/99), 728 S

o. 2d 126525

Harper v. A

dvantage Gam

ing Co., La. A

pp. 38837,24, 29,

31

880 So. 2d 948, 2004 La. A

pp. LEX

IS 1991, 3 A

.L.R.6th 795

(La.App. 2 C

ir. Aug. 18 2004).

Herm

an v. Rom

e, App. 5 C

ir. 1996, 668 So.2d 1202, 95-666,

12

95-831 (La.App. 5 C

ir. 1/17/96)

Jackson v. Am

erica's Favorite C

hicken Co., 98-0605

39

(La. App. 4 C

ir. 2/3/99), 729 So. 2d 1060

-

King v. P

arish Nat'lB

ank, La. 2004-0337, 885 So. 2d 540, 2004 La

23

LEX

IS 2979 (La. O

ct. 19 2004)

Knight v. O

wens, 869 S

o. 2d 188 (La App. 5th C

ir. 2004)10

LeBlanc v. Landry, A

pp. 3 Cir.1979, 371 S

o.2d 127613

Leake & A

ndersson, LLP v. S

IA Ins. C

o. (Risk R

etention Group),

21

Ltd., App. 4 C

ir.2004, 868 So. 2d 967, 2003-1600

(La.App. 4 C

ir. 3/3/04), rehearing denied

Louisiana Insurance Guaranty A

ssoc. ("LIGA

") v. Interstate Fire

25, 26

& C

asualty Co., 93-0911 (La. 1/14/94), 630 S

o. 2d 759

Page 4 of40

McG

uirev. Davis T

ruck Services, Inc., 518 S

o. 2d 117133

(La. App. 5th C

ir. 1988)

McM

ath Constr. C

o., Inc. v. Dupuy, 03-1413

18

(La. App. 1st C

ir. 11/17/04)

Narcise v. Jo E

llen Sm

ith Hosp., 98-0918, 98-2417

39

(La. App. 4 C

ir. 3/10/99), 729 So. 2d 748, w

rit denied,

99-0953 (La. 5/28/99), 743 So. 2d 679

Pender v. E

lmore, La. A

pp. 37690, 855 So. 2d 930, 2003

28

La. App. LE

XIS

2514 (La.App. 2 C

ir. Sept. 24 2003),

writ denied by La. 2003-2968, 864 S

o. 2d 632, 2004

La. LEX

IS 209 (La. Jan. 16, 2004)

Pittm

an v. State F

arm M

ut. Auto. Ins. C

o., La. App. 06-920,

23, 31

958 So. 2d 689, 2007 La. A

pp. LEX

IS 749

(La.App. 5 C

ir. Apr. 24 2007)

Reynolds v. S

elect Properties, Ltd., 93-1480 (La. 4/11/94),

27

634 So. 2d 1180

Reynolds v. S

elect, 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183

33

Richw

oodv. Goston, 340 S

o. 2d 632, 1976 La. App. LE

XIS

350829

(La.App. 2 C

ir. 1976), writ of certiorari denied by 342 S

o. 2d 871,

1977 La. LEX

IS 6345, 1977 La. LE

XIS

6968 (La. 1977)

Sayesv. S

afecolns. Co., 567 S

o. 2d 687; 199034

Page 5 of40

La. App. LE

XIS

2057, (3 Cir. 1990)

Sm

ith v. Audubonlns. C

o., La.App. 94-1571, 656 S

o. 2d 11, 199537

La. App. LE

XIS

1100 (La.App. 3 C

ir. May 3 1995

Sm

ith v. Rocks, 957 S

o. 2d 886 (La.App. 2 C

ir. 05/16/07)30

Sm

ith v. Terrebonne P

arish Consol. G

ov't, La.App. 2002-1423,

33

858 So. 2d 671, 2003 La. A

pp. LEX

IS 1965

(La.App. 1 C

ir. July 2 2003)

State ex rel. G

uste v. Green, La. A

pp. 94-1138, 657 So. 2d 610,

29

1995 La. App. LE

XIS

1898 (La.App. 1 C

ir. June 23 1995)

Verm

ilion Corp. v. V

aughn, 397 So. 2d 490 (La. 1981)

23, 31

Walker v. K

roop, App. 4 C

ir.1996, 678 So.2d 580, 1996-0618

13

(La.App. 4 C

ir. 7/24/96

West ex rel. W

est v. Watson, A

pp. 2 Cir.2001, 799 S

o.2d 1189,21

35,278 (La.App. 2 C


o.2d 140,

2001-3179 (La. 2/8/02)

III. Statem

ent of Jurisdiction

This is an appeal from

a judgment rendered by the H

onorable Em

ile R. S

t.

Pierre of the F

irst City C

ourt for the Parish of O

rleans. This C

ourt has jurisdiction

to hear this appeal pursuant to Article V

, § 10(A) of the Louisiana C

onstitution of

1974.

Page 6 of40

IV. S

tatement of the C

ase

a) Introduction

This case involves the im

proper handling by multiple parties of the insuring and

adjusting of two pieces of equipm

ent originally owned by the A

ppellant. Appellant

leased the equipment to a contractor w

ho was required to provide insurance for the

replacement value of both pieces of equipm

ent. The contractor obtained coverage

under its general contractor's pac policy and comm

ercial excess policy with the

Appellee, w

ho claimed that the equipm

ent would be covered to the extent required

under the rental contract with A

ppellant. Ater being sued for failing to pay on

claims ater the equipm

ent was stolen, A

ppellee obtained summ

ary judgment based

upon declarations of an adjuster who stated that (1) neither policy provided

coverage for the first piece of equipment, (2) the second piece of equipm

ent was

covered merely for actual cash value, and (3) that A

ppellee owed no other

obligations to Appellant. T

hough Appellee (1) refused to address tort claim

s,

additional insurance possibilities, and claims of vicarious liability, and (2)

Appellant and other parties to the suit opposed A

ppellee's declarations and alleged

undisputed facts, the trial cout improperly ruled in A

ppellee's favor.

b) Action of the T

rial Court and P

rocedural History

The A

ppellant filed a Petition for D

amages in the trial court on or around

Decem

ber 6, 2006 against Sm

ith & A

ssociates Consulting, LLC

(hereinater

Page 7 of40

ccSm

ith & A

ssociates"), Travelers Indem

nity Com

pany, Travelers P

ropety

Casualty C

ompany of A

merica ("A

ppellee") and Insurance Underw

riters

(hereinater "UW

"). The A

ppellee was served a cross-claim

by Sm

ith & A

ssociates

thereater and answered both dem

ands by or around April 19, 2007.

Discovery requests w

ere issued to Appellee on or around S

eptember 11, 2007.

On S

eptember 12, 2007, A

ppellee filed its Motion for S

umm

ary Judgment.

Appellee provided som

e limited responses to those requests on or around O

ctober

17,2007.

On N

ovember 30, 2007, the trial cout held a hearing on the m

atter and both

parties' counsel appeared. A judgm

ent was subm

itted on February 8, 2008,

providing a simple and brief explanation of the cout's findings, and discussing

merely contractual claim

s related to the coverages cited by Appellee.

Motion for D

evolutive Appeal w

as filed on April 7, 2008.

c) Assignm

ent of Errors

Error N

umber 1: T

he trial cout erred in granting Appellee's M

otion forS

umm

ary Judgment as it w

as untimely and im

properly brought before the cout

Error N

umber 2: T


otion forS

umm

ary Judgment as there exists at least one genuine issue of m

aterial fact asto coverage for the 70 X

T skid.

Error N

umber 3: T


otion forS

umm


aterial fact asto coverage for the replacem

ent value of the insured machinery.

Page 8 of40

Error N

umber 4: T

he trial court erred in granting Appellee's M

otion forS

umm


aterial fact asto w

hether the Appellee has other duties to A

ppellant under the contract which

remain unsatisfied.T

heS

umm

ary Judgment because it failed to

tot claims w

hich were before the cout.

d) Issues Presented for R

eview

This C

out is presented with the follow

ing issues:

1)W

as there a genuine issue of material fact that coverage for the 70 X

Texisted or should have existed?

2)W

as there a genuine issue of material fact that coverage for the

replacement value of insured m

achinery existed or should haveexisted?

3)W

as there a genuine issue of material fact that A

ppellee owes and

owed futher contractual duties to the A

ppellant?4)

Did the trial cout error in granting the A

ppellee's Motion for

Sum

mary Judgm

ent without adjudicating other contract and tot

claims presented by the A

ppellant?5)

Did the trial cout error in granting the A


Sum

mary Judgm

ent when it w

as untimely, im

proper and based uponinsufficient evidence?

Page 9 of40

V. Legal A

rgument

Error 1:

The M

otion for Sum

mary Judgm

ent Was Im

proper and Untim

ely

Table of C

ontents for Legal Argum

ent of Error 1

A.

Relevant C

ode Aticles R

egarding Sum

mary Judgm

ent....10

B.

Requirem

ents of Sufficient M

otion for Sum

mary.

11

Judgment

(i) Aidavits

11

(ii) Disputed F

acts13

(iii) Tim

e to Obtain A

dequate Discovery.

18

A. R

elevant Code A

rticle Regarding Louisiana M

otion for Sum

mary

Judgment S

tandard

The La. C

.C.P

At. 966 states in petinent pat that for a case to be dism

issed

under a Motion for S

umm

ary Judgment standard then it m

ust "show that there is

no genuine issue as to a material fact." F

uther, "a material fact is one that w

ould

matter in the trial on the m

erits." Knight v. O

wens, 869 S

o. 2d 188 (La App. 5th

Cir. 2004).

In its Mem

orandum in S

uppot of Motion for S

umm

ary Judgment, A

ppellee

moves the trial cout for sum

mary judgm

ent based on the sole assetion that

Plaintiff has no claim

against the Defendant because D

efendant makes a legal

determination as w

hat coverage applies to the losses claimed. T

o be successful on

its motion for sum

mary judgm

ent, Appellee m

ust have demonstrated to the cout

that it had properly formulated and filed a satisfactory m

otion for summ

ary

judgment w

hich satisfies movant's burden of show

ing that no genuine issue of

Page 10 of 40

material fact rem

ains as to each of the claims. "M

over for summ

ary judgment m

ust

meet strict standard by show

ing that it is quite clear as to what truth is, and that

excludes any real doubt as to existence of material fact." B

room v. Leebron &

Robinson R

ent-A-C

ar, Inc., App. 2 C

ir.1993, 626 So.2d 1212.

The issues w

ill be discussed in-turn and Plaintiff w

ill demonstrate that (1)

Defendant's m

otion for summ

ary judgment w

as not satisfactorily compliant w

ith

the law; and (2) D

efendant's motion for sum

mary judgm

ent is not timely offered to

this Cout.

B.

Requirem

ents of a Sufficient M

otion for Sum

mary Judgm

ent

(i) Afidavits

Local Rule 9.10, along w

ith LA C

CP

Aticle 966 and 967 provide that a

Motion for S

umm

ary Judgment should include affidavits dem

onstrating that there

is no genuine issue of material fact. A

ppellee has enclosed one single, and

disputed, affidavit which suppot its position that no coverage exists.

While a M

otion for Sum

mary Judgm

ent is an allowable procedural vehicle, it

is a matter to be taken seriously by couts as the fate of a litigant's claim

is at risk.

As such, A

ppellant contends that the allegations proposed as the undisputed truth

be at least verified through a valid and suicient aidavit.

Page 11 of40

Appellee offers no affidavit of w

ritten testimony of any of the specific actors

or employees of the actors involved in this dispute. T

he Defendant m

erely makes

conclusory allegations based upon the existence of a policy.

There is nothing in the suppoting docum

entation which indicates the nature

of any and all requests, correspondence, or discussions between the paties

regarding the insurance, or which speaks to the m

ajority of the declarations made

by the Appellant w

ithin its Petition and M

emorandum

in Opposition to M

otion for

Sum

mary Judgm

ent The existence of this docum

ent, directly contradicts the

Appellee's ow

n allegations that Sm

ith & A

ssociates has general coverage under the

Com

mercial E

xcess Policy, C

omm

ercial General Liability P

olicy and

Businessow

ners Policy . In fact, P

laintiff's aidavits speak directly to these issues,

by failing to address such at least warranting notice that an issue w

hich is before

the cout speaks to a material fact and is at dispute.

According to Louisiana couts, "S

umm

ary judgment m

ust be denied if

suppoting documents presented by m

over are not sufficient to resolve all material

fact issues." Herm

an v. Rom

e, App. 5 C

ir.1996, 668 So.2d 1202, 95-666, 95-831

(La.App. 5 C

ir. 1/17/96). Futher, it is indicated that a cout's first task on m

otion

for summ

ary judgment is "determ

ining whether m

oving paty's suppoting

documents—

pleadings, depositions, answers to interrogatories, adm

issions and

aidavits—are sufficient to resolve all m

aterial factual issues." Daniel v. B

laine

Kern A

rtists, Inc., App. 4 C

ir.1996, 681 So.2d 19, 1996-1348 (La.A

pp. 4 Cir.

Page 12 of 40

9/11/96), writ denied 684 S

o.2d 934, 1996-2463 (La. 12/6/96); Walker v. K

roop,

App. 4 C

ir.1996, 678 So.2d 580, 1996-0618 (La.A

pp. 4 Cir. 7/24/96).

Where supporting docum

ents of proponents and opponents of motion for sum

mary

judgment indicate a genuine issue of m

aterial fact may exist, a m

otion should be

denied. LeBlanc v. Landry, A

pp. 3 Cir. 1979, 371 S

o.2d 1276. Appellee's aidavits

undoubtedly illustrate that Appellee fails to respond to several claim

s that futher

obligations exist which benefit the A

ppellant and which should be set for the trier

of fact. At the least, A

ppellee's sole aidavit indicates that there are several issues

remaining as to w

hether or not Appelle has som

e liability to the Plaintiff, w

hether

that be tot or contract.

Therefore, A

ppellee's motion w

as insuicient and this cout should overtun

the trials cout's ruling.

(ii.) Disputed F

acts

A m

otion for summ

ary judgment requires that the m

over illustrate that no

issue remains as to a m

aterial fact. The A

ppellee attempted to satisfy this

requirement by offering to the cout a m

emorandum

stating a simple argum

ent that

it believes precludes this action, without calling attention to or defending the

various disputed facts herein.

Within its P

etition, Appellant states an understanding of facts that are directly

adverse to those stated by the Appellee. A

ppellee has not made a declaration that

the disputed elements are uncontested sim

ply because Appellee feels that those

Page 13 of 40

facts and assetions are wrong or inapplicable. A

ppellant differs as to validity of

these facts and has pled that position within its P

etition where allegations abound

as to the vast assotment of issues presented in the subsequent paragraph.

There are several, if not m

any, contested facts before the cout. The A

ppellant

has been active in relaying these disputed facts to the cout during these

proceedings throughout pleadings and mem

oranda. Appellant avers that the

disputed facts before the cout include but are not limited to the follow

ing:

(1) It is disputed that the date of thet occurred in the rather ominous period of

"March 2006."

(2) It is disputed whether or not the date of repoting to the A

ppellee fell within

the sixty (60) day period, because Appellee cannot provide the date of thet.

(3) It is disputed whether the C

ontractors Pac P

olicy, Com

mercial Inland

Marine C

overage (Exhibit A

, Motion for S

umm

ary Judgment, hereinater

ccCP

IM") provides coverage of the 70 X

T.

(4) It is disputed that the 70 XT

was "acquired" on or around D

ecember 7,

2005.


constitutes "newly acquired" under the C

PIM

(6) It is disputed that the Contractors P

ac Policy, B

usinessowners C

overage

(Exhibit A

, Motion for S

umm

ary Judgment, hereinater "B

OC

") provides

coverage for the 70 XT

skid.

Page 14 of 40


constitutes Business P

ersonal Property under

the BO

C.


ac Policy C

omm

ercial General Liability

(Exhibit A

, Motion for S

umm

ary Judgment, hereinater "C

GL") provides

coverage for the loss of the 70 XT

.


ac Policy C

omm


(Exhibit A

, Motion for S

umm


GL") provides

coverage for the replacement value of the 60 X

T


ac Policy C

omm


(Exhibit A

, Motion for S

umm


GL") covers S

mith

& A

ssociates' negligence in failing to preserve the 60 XT

and 70 XT

resulting

their loss.

(11) It is disputed that the contracts for insurance for both the 60 XT

and 70 XT

,

between A

ppellant and Sm

ith & A

ssociates (Exhibits A

and B, O

pposition to

Motion for S

umm

ary Judgment, hereinater "B

LE C

ontracts") creates a duty

for Appellee to provide com

parable insurance.

(12)It is disputed that the BLE

Contracts represents evidence of a conventional

obligation between A

ppellant and Appellee.

(13)It is disputed that Appellee w

as in receipt of the Cetificate of Insurance

(Exhibit C

, Mem

orandum in O

pposition to Motion for S

umm

ary Judgment,

hereinater "CO

I") confirming coverage for replacem

ent value of the

Page 15 of

40

equipment and thereater failed to am

end the Declarations to the C

PIM

to

reflect such.

(14)It is disputed that the CO

I creates and/or reflects an obligation on behalf of

the Appellee to the A

ppellant in regards to providing coverage for replacement

value.

(15) It is disputed that Insurance Underw

riters acts as agent for Appellee.

(16) It is disputed that Appellee provided through its agent a C

OI that led to the

detrimental reliance of A

ppellant.

(17)It is disputed that Appellee's actions in failing to observe the term

s of the

cetificate of insurance constituted negligence.

(18) It is disputed that the Appellant's equipm

ent was not covered by the

Com

mercial E

xcess Liability Insurance Policy (E

xhibit B, M

otion for

Sum

mary Judgm

ent, hereinater "CE

L").

(19) It is disputed that the Appellant's equipm

ent qualify as "first party

propety" as designated in the Appellee's M

otion for Sum

mary Judgm

ent.

(20) It is disputed that the Appellant's authorization of paym

ent for the 60 XT

skid was an acceptance of the price of the equipm

ent or rather a simple

payment under the A

ppraisal Loss for disputed values.

(21) It is disputed that Appellant had asseted tot claim

s in the trial cout.

(22) It is disputed that the declarations of Sm

ith & A

ssociates do not constitute

allegations of tot damages to w

hich Appellee has not responded.

Page 16 of 40

(23) It is disputed that all of Appellant's claim

s made by w

ay of its petition are

related to the contractual obligations of Appellee under its various insurance

policies.

(24) It is disputed that Appellee failed to properly fulfill its obligations to

properly adjust claims m

ade in regards to the 60 XT

and 70 XT

skids.

(25) It is disputed that Appellee provides coverage for the 70 X

T skid under the

CP

IM S

ection C's A

mendm

ent (Page 10 of E

xhibit B/2 to M

otion for Sum

mary

Judgment).


skid is "unscheduled tools and equipment"

under CP

IM A

dditional Coverage, S

ection 5(c) (Page 7 of E

Xhibit B

/2 to

Motion for S

umm

ary Judgment)

(27) It is disputed that Appellee provides coverage for repair and replacem

ent

damages for the 60 X

T and 70 X

T under C

PIM

Additional C

overage, Section 5

(c) (Page 7 of E

xhibit B/2 to M

otion for Sum

mary Judgm

ent).

In regards to many of these, w

hat Appellant term

s as "disputed facts," it may be

true that some, if not several, are actually facts undisputed by the A

ppellee who

failed to provide any defense, response, or argument to upend such an allegation.

Those allegations let unansw

ered by the Appellee are discussed later in this brief.

Futherm

ore, Appellee's subm

itted statement of undisputed facts, as suppoted

by the aidavit of Ms. E

lizabeth G. Lochte (E

xhibit 1, Motion for S

umm

ary

Judgment, hereinater "A

idavit), includes several statements w

hich are in fact

Page 17 of 40

disputed facts. Appellant disputes that #2, #3, #4, #5, #6, #10, and #12 of the

Affidavit are undisputed and cannot find any docum

ent, pleading or assetion

which states otherw

ise. According to law

cited by Appellant in its O

pposition to

the Motion for S

umm

ary Judgment, "an insurer seeking to avoid coverage through

summ

ary judgment bears the burden of proving som

e exclusion applies to preclude

coverage. McM

ath Constr C

o., Inc. v. Dupuy, 03-1413 (La.A

pp. 1st Cir.

11/17/04). Clearly, A

ppellee's Answ

er, Defenses and M

otion for Sum

mary

Judgment, and attachm

ents, fail to speak to a wide assortm

ent of potential major

issues of coverage remaining in the pleadings.

For these reasons, A

ppellant believes that the Appellee failed to satisfy its

obligation to provide necessary and undisputed facts, which are necessary to

sustain a motion for sum

mary judgm

ent. As Louisiana cout has stated, "O

nly

when reasonable m

inds must inevitably conclude that m

over is entitled to

judgment is m

atter of law on facts before cout is sum

mary judgm

ent warranted ...

any doubt is resolved against granting summ

ary judgment and in favor of trial on

merits to resolve disputed facts." D

urrosseau v. Century 21 F

lavin Realty, Inc.,

App. 3 C

ir. 1992, 594 So.2d 1036. A

ppellant argues that the trial cout's ruling is

flawed based upon these findings.

(iii) Tim

e to Obtain A

dequate Discovery

Under La. C

.C.P

. Art. 966(C

), a motion for sum

mary judgm

ent should not be

Page 18 of 40

submitted to the cout until ater am

ple time has been given for discovery of

material fact. La. C

.C.P

. At. 966(C

) is prefaced by stating, "Ater adequate

discovery or after a case is set for trial, a motion w

hich shows that there is no

genuine issue as to material fact and that the m

over is entitled to judgment as a

matter of law

shall be granted, (emphasis added) T

herefore, the law is clear in

stating at the least its preference that a motion for sum

mary judgm

ent not be

considered until a non-moving is perm

itted and actually granted a suitable or

"adequate" time for w

hich to obtain discovery rom the m

oving party or paties.

Appellant w

as not able to procure discovery because of its inability to control

the service of and deadlines to pleadings filed against Sm

ith & A

ssociates, a

necessary paty to the proceedings, whom

the Appellant believed can and w

ill

provide much inform

ation, documentation and correspondence petaining to the

relationship between A

ppellee and the insurance policies at dispute. Futher,

discovery was delayed because of potential settlem

ent discussions which seem

ed

to be conclusory. Needless to say, im

mediately at the point of breakdow

n,

Appellant initiated discovery against the A

ppellees.

Appellee has not provided discovery related to m

ajor points of contention,

speciically the dates of the thet of the covered equipment; the dates of repoting

of thet; the definition of "acquisition" as defined within the C

PIM

; the definition

or evidence precluding the coverage of equipment as business personal property

under the BO

C; evidence precluding the coverage of "unscheduled tools and

Page 19 of 40

equipment;" evidence related to preclusion of A

ppellant's tot claims for failing

properly handle the insuring of the equipment; evidence precluding the A

ppellant's

quasi-contractual or reliance claims; nor any evidence illustrating that U

W and

Appellee do not have an agency relationship creating vicarious liability; all

allegations, which am

ong others, have gone unnoticed by the Appellee and the trial

cout.Appellant futher argues that the trial cout ignored its rights to funished

enough time to collect "adequate" discovery. P

laintiff has only been granted an

opportunity to obtain discovery over period of less than five (5) months from

the

date of Appellee's response to cross-claim

s up to and until its filing of its motion

for summ

ary judgment. A

ppellant also avers that the five month period w

as

actually clouded with potential settlem

ent which stalled out all discovery.

To date, A

ppellant has been unable to depose any individual in connection

with this m

atter; nor has it been able to secure the full response of any of the

Defendants in regards to discovery requests m

ade. In fact, at this very mom

ent

Appellant is engaged in requesting the trial cout to com

pel other defendants to

respond to its original discovery requests.

According to law

, it would seem

to indicate that even a full and productive

five months is not enough tim

e to compile adequate discovery. In a case held in the

2nd Circuit, the C

out held that seven months w

as not adequate time to depose a

Page 20 of 40

person essential to the matter and therefore a continuance should have been

granted. West ex rel. W

est v. Watson, A

pp. 2 Cir.2001, 799 S

o.2d 1189, 35,278

(La.App. 2 C


o.2d 140, 2001-3179 (La. 2/8/02).

Even looking at the case law

petaining to this discovery issue from the other

end of the spectrum, or opposing point of view

, it would indicate that the couts are

in agreement that tim

e to obtain discovery is necessary. "Although the language of

the summ

ary judgment statute does not grant a party the absolute right to delay a

decision on a motion for sum

mary judgm

ent until all discovery is complete, the

law does require that the parties be given a fair opportunity to present their case.

Leake & A

ndersson, LLP v. S

IAIns. C

o. (Risk R

etention Group), Ltd., A

pp. 4 Cir.

2004, 868 So. 2d 967, 2003-1600 (La.A

pp. 4 Cir. 3/3/04), rehearing denied; D

oe v.

AB

C C

orp., App. 4 C

ir. 2001, 790 So.2d 136, 2000-1905, 2000-1906 (La.A

pp. 4

Cir. 6/2, 2000-1906 La.A

pp. 4 Cir. 6/27/01, w

rit denied 801 So.2d 377, 2001-2207

(La. 11/9/01). Given the A

ppellee and the trial cout's failure to observe and

adjudicate several key claims m

ade by the Appellant as w

ell as Sm

ith &

Associates, it is clear that A

ppellant was not afforded the oppotunity to present its

case. Once again, the trial cout has erred in granting sum

mary judgm

ent as to all

claims m

ade by Appellant.

Page 21 of 40

Error 2:

The T

rial Court E

rred in Granting A


Sum

mary Judgm

ent as There E

xists at Least One G

enuine Issue of Material

Fact as to C

overage for the 70 XT

Skid.

Table of C


ent of Error 2

A.

Relevant C

ode Aticles and C

ases Regarding

22G

enuine Issues of Material F

actB

.A

pplicable Law, C

oupled with

24C

ircumstances of the C

ase Indicate that Motion for

Sum

mary Judgm

ent Was N

ot Suppoted

C.

Review

of All C

laims as to 70 X

T29

is Proper on A

ppeal.

A. R

elevant Code A

rticle Regarding G


act

A m

otion for summ

ary judgment w

ill not prevail if the moving party cannot

illustrate that no issue of material fact rem

ains. This principle solely govened by

La. C.C

P.A

t. 966:

C. (1) A

ter adequate discovery or ater a case is set for trial, a motion w

hich

shows that there is no genuine issue as to m

aterial fact and that the mover is

entitled to judgment as a m

atter of law shall be granted.

(2) The burden of proof rem

ains with the m

ovant. How

ever, if the movant

will not bear the burden of proof at trial on the m

atter that is before the court on the

motion for sum

mary judgm

ent, the movant's burden on the m

otion does not require

him to negate all essential elem

ents of the adverse party's claim, action, or defense,

but rather to point out to the court that there is an absence of factual suppot for

one or more elem

ents essential to the adverse party's claim, action, or defense.

Thereater, if the adverse party fails to produce factual suppot sufficient to

Page 22 of 40

establish that he will be able to satisfy his evidentiary burden of proof at trial, there

is no genuine issue of material fact.

Appellee's obligation to the cout is to satisfy its burden to negate the

essential elements of the claim

s against him. A

ppellee cannot prevail without

carrying its burden of proving there was an absence of support for all of a

plaintif's claims. P

ittman v. S

tate Farm

Mut. A

uto. Ins. Co., La. A

pp. 06-920, 958

So. 2d 689, 2007 La. A

pp. LEX

IS 749 (La.A

pp. 5 Cir. A

pr. 24 2007) (emphasis

added). "The m

oving party cannot prevail on the motion by m

erely arguing

there is a general lack of proof for the non-movant's claim

s. Rather, the m

ovant

must point out w

ith specificity which speciic elem

ents of proof are lacking.

Pittm

an at 694, 958 So. 2d 689 (em

phasis added) Case law

indicates that summ

ary

judgment is not appropriate w

here the petition and depositions provided enough

factual suppot for a reasonable fact finder to ind acts constituting liability on the

pat of the movant and thus, sum

mary judgm

ent was im

properly granted. King v.

Parish N

at'lBank, La. 2004-0337, 885 S

o. 2d 540, 2004 La. LEX

IS 2979 (La. O

ct.

19 2004). A better w

ay at looking at the burden on the movant is show

n in the

Verm

ilion case where the cout stated, "m

over must m

eet a strict standard by a

showing that excludes any real doubt as to the existence of a genuine issue of

material fact. V

ermilion C

orp. v. Vaughn, 397 S

o. 2d 490 (La. 1981).

Appellate couts review

summ

ary judgments de novo under the sam

e criteria

that goven the district cout's consideration of whether sum

mary judgm

ent is

Page 23 of 40

appropriate. Harper v. A

dvantage Gam

ing Co., La. A

pp. 38837, 880 So. 2d 948,

2004 La. App. LE

XIS

1991, 3 A.L.R

.6th 795 (La.App. 2 C

ir. Aug. 18 2004).

Appellant's stated facts shall be reassessed to determ

ine if (a) they consitute a

genuine issue, and (b) that issue was dispelled by A

ppellee.

B. A

pplicable Law C

oupled with C

ircumstances of C

ase Indicate that the

Motion for S

umm

ary Judgment w

as Improper.

Appellant has been clear throughout this brief that num

erous issues of

material fact rem

ain as to whether or not (a) A

ppellee provided coverage for the 70

XT

skidsteer (hereinater "70 XT

"), (b) Appellee rem

ains responsible for the loss

of the 70 XT

due to a breach of its duty to Appellant, or (c) A

ppellee remains

responsible for Appellant's detrim

ental reliance. These issues w

ere presented

clearly by the Appellant and in the opinion of A

ppellant all but disregarded by the

trial cout. The error generally centers around the trial cout's inability to consider

vague or ambiguous language as possibly beneficial to the non-m

ovant.

(i) CP

IM S

cheduled Coverage for the 70 X

T

Appellant's factual assetions m

ade by way of its petition and m

emorandum

in

opposition to summ

ary judgment provide assetions that the A

ppellee provides

some form

of coverage for the 70 XT

.

Appellant has argued that the A

ppellee's failure to evidence the date of the

thet of the 70 XT

, through any means, w

hether that be documentation or statem

ent

Page 24 of 40

of a person familiar w

ith the incident leading to the thet, has caused a question to

linger as to whether or not the alleged "new

ly acquired equipment" provision of

the CP

IM has application. B

ecause the Appellees w

ere unable to provide

substantiation for their allegation that the thet occured more than 60 days from

the

urental" of the 70 XT

, the issue is genuinely at dispute between the paties. F

uther,

Appellees have been unable to properly provide any evidence or contradictory

statement w

hich even implies that the "rental" of a peice of m

achinery constitutes

the "acquisition" of a peice of machinery for purposes of coverage under the

CP

IM. A

s such, a large potion of undefined, vague and ambiguous contract

language remains unsolved by the A

ppellee's offerings to the trial cout.

"An insurance policy is a contract betw

een the parties and should be

construed by using the general rules of interpretation set foth in the Civil C

ode."

Louisiana Insurance Guaranty A

ssoc. ("LIGA

") v. Interstate Fire &

Casualty C

o.,

93-0911 (La. 1/14/94), 630 So. 2d 759. "T

he judicial responsibility in interpreting

insurance contracts is to determine the paties' com

mon intent." LS

A-C

.C. at.

2045; LIGA

, supra. Such intent is to be determ

ined in accordance with the general,

ordinary and plain meaning of the w

ords used in the policy, unless the words have

acquired a technical meaning. G

edwardv. S

onnier, 98-1688 (La. 3/2/99), 728 So.

2d 1265 (emphasis added)

If language remains unclear ater resoting to plain and technical reasoning,

the rules of strict construction apply. This rule of strict construction requires that

Page 25 of 40

ambiguous policy provisions be construed against the insurer w

ho issued the

policy and in favor of coverage to the insured. LSA

-C.C

. at. 2056; LIGA

, supra

(emphasis added). A

s the Appellant is the insured, it should have been given a

narrow m

eaning to the vague wording of the policy.

(ii) Potential A

dditional Coverage for 70 X

T

Appellant argues that the discrepancies w

ith language and potential coverage

does not end with the C

PIM

general coverage. Additional coverage rem

ains to be

refuted under (a) BO

C and (b) C

PIM

Section C

(hereinater "CP

IM C

").

Under the provisions of the B

OC

, Appellants m

ay have coverage for the 70

XT

if in fact the equipment can be interpreted as "business personal property." N

o

definition for business personal propety has been provided by the BO

C, nor has

the Appellee provided contridictory evidence that the 70 X

T cannot be covered

under this provision.

CP

IM C

, as amended by F

orm C

M T

3 88 08 97 (Exhibit B

2, Page 10, M

oton

for Sum

mary Judgm

ent) provides coverage for "unscheduled tools and equipment

for any one item." S

imilarly, C

PIM

Additional C

overage Section 5 provides

potential additional recovery for temporary loss due to the absence of the covered

property. Once again the policy provides no m

eaning for these terms, nor does the

responsive documentation provided by A

ppellee.

Appellee's failure to respond to allegations such as those cited above, does not

in any way fulfill the duty it has to negate each and every claim

made against it.

Page 26 of 40

"Sum

mary judgm

ent 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 show

n by the evidence suppoting the

motion, under w

hich coverage could be afforded. Reynolds v. S

elect Properties,

Ltd, 93-1480 (La. 4/11/94), 634 So. 2d 1180; D

avis v. Am

erican Heritage Life

Insurance Co., 35,153 (La. A

pp. 2d Cir. 10/31/01), 799 S

o. 2d 705. Appellant

believes that its interpretation of this policy is more than reasonable ater

examining both the plain and technical m

eanings of the language put foth in the

policies at dispute.

(iii) Alternative R

esponsibility for Loss of 70 XT

Appellant also argued that A

ppellee is likely alternatively responsible for the

loss of the 70 XT

regardless of whether or not the m

achinery is actually covered by

the policy. Appellant believes there is a genuine issue of m

aterial fact that UW

acts

as agent for Appellee, and ater receiving a copy of the B

LE C

ontract for the 70

XT

, negligently mishandled that inform

ation resulting in unlisting of the 70 XT

among the declarations of the C

PIM

policy.

In regards to a vicarious liability claim surviving sum

mary judgm

ent, the

moving party m

ust of course illustrate that there is no genuine issue of material

fact. If movant can satisfy that duty, the non-m

ovant is required to produce factual

suppot sufficient to establish that they would be able to satisfy their evidentiary

Page 27 of 40

burden demonstrating the principal's right to control the w

ork or actions of the

agent for the insuring of the the equipment. P

ender v. Elm

ore, La. App. 37690, 855

So. 2d 930, 2003 La. A

pp. LEX

IS 2514 (La.A

pp. 2 Cir. S

ept. 24 2003), writ denied

by La. 2003-2968, 864 So. 2d 632, 2004 La. LE

XIS

209 (La. Jan. 16, 2004).

Futher, if the evidence show

ed that there was a factual dispute as to w

hether the

agent was w

orking in the course of its agency when it caused the dam

age, it would

impute liability to the em

ployer under La. Civ. C

ode Ann. A

t. 2320, and inevitably

survive summ

ary judgement. A

lfordv. State F

arm A


pp. 31763,

734 So. 2d 1253, 1999 La. A

pp. LEX

IS 1322 (La.A

pp. 2 Cir. M

ay 5 1999), writ

denied by La. 99-1595, 747 So. 2d 548, 1999 La. LE

XIS

2318 (La. Sept. 3, 1999).

Under La. C

.C. A

rt. 2320, "masters and em

ployers are answerable for the

damage occasioned by their servants and overseers, in the exercise of the functions

in which they are em

ployed." This duty of the m

aster extends to independent

contractors as well. A

rroyo v. E. Jeferson G

en. Hosp., La. A

pp. 06-799, 956 So. 2d

661, 2007 La. App. LE

XIS

463 (La.App. 5 C

ir. Mar. 13 2007), w

rit denied by 957

So. 2d 179, 2007 La. LE

XIS

1360 (La. 2007). Because it w

as alleged that UW

acted specifically at the direction of Appellee in procuring the policies, collecting

premium

s and updating, maintaining and am

ending the policies, there is a genuine

issue of material fact as to w

hether or not Appellee m

ay be responsible for UW

's

failure to properly handle the BLE

Contracts.

Page 28 of 40

C. R

eview of A

ll Claim

s as to 70 XT

Proper on A

ppeal

As stated above, this C

out reviews the m

atter de novo. Harper, 880 S

o. 2d

948. The A

ppellant avers that each and every one of its claims w

ere stated as

matters of law

within its pleadings to the trial cout and specifically its petition. A

petition must m

erely cite a "shot, clear, and concise statement of the causes of

action." La. C.C

.P. A

t. 891. Appellant sought dam

ages for Appellee's failure to

provide coverage under its numerous policies and failure to provide proper and

sufficient coverage. (Petition, S

ection 15) Appellant's claim

s were not vague and

did not deprive the Appellee of notice of the claim

s. State ex rel. G

uste v. Green,

La. App. 94-1138, 657 S

o. 2d 610, 1995 La. App. LE

XIS

1898 (La.App. 1 C

ir.

June 23 1995).

Appellee's claim

s were absolutely before the cout, and A

ppellee waived ant

objection when it filed an answ

er, because an objection based on failure to properly

state its claims is dilatory and had to have been pleaded prior to answ

er, or it is

waived under La. C

ode Civ. P

roc. Ann. at. 928. R

ichwoodv. G

oston, 340 So. 2d

632,1976 La. App. LE

XIS

3508 (La.App. 2 C

ir. 1976), writ of cetiorari denied by

342 So. 2d 871,1977 La. LE

XIS

6345, 1977 La. LEX

IS 6968 (La. 1977).

Appellee failed to raise any objection to any of the A

ppellant's claims and

cannot object on appeal that it could not identify the Appellant's claim

s which w

ere

overstated in correspondence and its mem

orandum in opposition to the m

otion for

Page 29 of 40

summ

ary judgment. A

ppellee entered the insurance policies into the record and put

at dispute each and every single term of that policy. A

ppellant made a general

claim that it w

as provided coverage by Appellee and such w

as before the trial cout

for ruling.

In considering whether sum

mary judgm

ent was appropriate in this case, the

use of undefined terms and am

biguous language is construed in its most inclusive

sense in favor of coverage. Sm

ith v. Rocks, 957 S

o. 2d 886 (La.App. 2 C

ir.

05/16/07). Therefore, it is clear that the judgm

ent was im

properly entered and that

it goes against the law and evidence. A

ppellant desires this Cout to ovetun

summ

ary judgment dism

issing claims as to coverage and responsibility for the 70

XT

.

Error 3:

The T

rial Court E

rred in Granting A


Sum

mary Judgm

ent as There E



Fact as to C

overage for the Replacem

ent Value of the Insured M

achinery.

Table of C


ent of Error 3

A.

Relevant C

ode Aticles R

egarding Genuine

31

Issues of Material F

actB

.A

pplicable Code A

ticles and Case Law

31

Coupled w

ith Circum

stances of the Case

Indicate that a Genuine Issue of M

aterial Fact

Rem

ains Unsettled as to C

overage for Replacem

entV

aluei. R

eplacement V

alue Coverage is P

rovided32

by the Policy

ii. Altenatively, A

ppellee Bears B

urden of Loss35

for Replacem

ent Value for 60 X

T

Page 30 of 40

A. R

elevant Code A

rticle Regarding G


act

As stated above in E

rror 2, the determination of w

hether or not claims

should be dismissed pursuant to sum

mary judgm

ent are solely governed by La.

C.C

.P. A

t. 966. Appellee cannot prevail w

ithout carrying its burden of proving

there was an absence of suppot for all of a plaintif's claim

s. Pittm

an v. State

Farm

Mut. A


pp. 06-920, 958 So. 2d 689, 2007 La. A

pp. LEX

IS

749 (La.App. 5 C

ir. Apr. 24 2007) (em

phasis added). The burden on the m

ovant is

shown in the V

ermilion case w

here the cout stated, "mover m

ust meet a strict

standard by a showing that excludes any real doubt as to the existence of a genuine

issue of material fact. V

ermilion C

orp. v. Vaughn, 397 S

o. 2d 490 (La. 1981).

Appellate couts review

summ

ary judgments de novo under the sam

e criteria that

goven the district cout's consideration of whether sum

mary judgm

ent is

appropriate. Harper v. A

dvantage Gam

ing Co., La. A

pp. 38837, 880 So. 2d 948,

2004 La. App. LE

XIS

1991, 3 A.L.R

.6th 795 (La.App. 2 C

ir. Aug. 18 2004).

B. A

pplicable Code P

rovisions and Case Law

, Coupled w

ith Circum

stances ofC

ase Indicate that a Genuine Issue of M

aterial Fact R

emains U

nsettled as toC

overage for Replacem

ent Value.

Appellant has provided adequate evidence of fact relating to the A

ppellee's

obligation to provide coverage for the Replacem

ent Value of the 60 X

T skidsteer

(hereinater "60 XT

"), and if covered, which w

e argue for coverage, the 70 XT

.

(The 60 X

T and 70 X

T are referred to as the "S

kids") The subm

ission to the trial

Page 31 of 40

court of (a) the CO

I indicating coverage for the replacement value of the S

kids; (b)

the BLE

Contracts unequivocally requiring coverage for replacem

ent cost; and (c)

the face of the CP

IM policy undoubtedly provides that A

ppellee was obligated to

and does provide coverage to the Appellant for replacem

ent value (hereinater

»RV

") of the Skids.

(i) Replacem

ent Value C

overage Provided by the P

olicies

The P

etition clearly states that Appellant and S

mith &

Associates entered

into an agreement to provide coverage for the R

V of the S

kids. The effect of this

intention was evidenced by the B

LE C

ontracts. Appellants aver that the B

LE

Contracts w

ere utilized in order to obtain the CO

I provided by UW

and Appellee.

The C

OI once again clearly reflects the intention and the agreem

ent with both U

W

and Appellee that the S

kids were to be covered by the policies, and m

ost

specifically the CP

IM.

Appellees have argued that the language of the C

PIM

policy itself precludes

each and every issue of fact remaining. A

ppellee argues that one potion of the

CP

IM, S

ection E, determ

ines that Appellee's sole obligation, w

ithout dispute, is

that "valuation" will be the "least of the follow

ing amounts:... (1) T

he actual cash

value of that property." How

ever, the first page of the Declarations to the C

PIM

states that the coverage to the specific 60 XT

leased to Sm

ith & A

ssociates by

Appellant is alloted at $36,000.00, the A

ppellant's declared RV

of the 60 XT

,

Page 32 of 40

therefore providing more than a sim

ple question as to (a) whether or not A

ppellee

received and implem

ented the CO

I and BLE

Contracts into the policy, and (b)

whether or not the C

PIM

does in fact provide coverage for the RV

of the Skids.

Speciically regarding the question of insurance coverage, the jurisprudence

of Louisiana consistently holds, "[a] cout should only grant the motion for

summ

ary judgment w

hen fhQ facts are taken into account and it is clear that the

provisions of the insurance policy do not afford coverage. Reynolds v. S

elect,

93-1480 (La. 4/11/94), 634 So.2d 1180, 1183. (em

phasis added) Sum

mary

judgment declaring a lack of coverage under an insurance policy m

ay not be

rendered unless there is no reasonable interpretation of the policy, when applied to

the undisputed material facts show

n by the evidence suppoting the motion, under

which coverage could be afforded. S

mith v. T

errebonne Parish C

onsol. Gov%

La.

App. 2002-1423, 858 S

o. 2d 671, 2003 La.App. LE

XIS

1965 (La.App. 1 C

ir. July

2 2003). As has been illustrated above in E

rror 1, the court did not review any

undisputed facts related to the manner in w

hich Appellee review

ed the CO

I or BLE

Contracts. In fact, the only undisputed facts presented w

as that the CP

IM S

ection

E, reads as is cited above.

Nothing has been presented by the A

ppellee to discredit the notion put

forward by the A

ppellant that the CO

I, BLE

Contracts and C

PIM

Declaration page

each indicate something opposite to that w

hich is stated in the CP

IM. In M

cGuire

v. Davis T

ruck Services, Inc., 518 S

o. 2d 1171 (La. App. 5th C

ir. 1988), writ

Page 33 of 40

denied, where tw

o or more policy provisions of equal stature conflicted, the policy

required interpretation under a different legal standard and in favor of the insured.

It can also be said that the CP

IM S

ection E provision and the D

eclaration page

create ambiguity in the policy, therefore the rule of strict construction requires that

ambiguous policy provisions be construed against the insurer w

ho issued the

policy and in favor of coverage to the insured. La. C.C

. at. 2056 (emphasis added)

In Sayes v. S

afeco Ins. Co., 567 S

o. 2d 687; 1990 La. App. LE

XIS

2057, (3

Cir. 1990), the cout stated that "interpretation of a contract [for insurance] is the

determination of the com

mon intent of the paties. La. C

.C. A

ts. 2045 and 2046.

Louisiana law is clear that any am

biguities in a contract are to be construed against

the drater of a contract. Sayes, 567 S

o. 2d 687, citing Cotton v. W

al-Mart S

tores,

Inc., 552 So. 2d 14, at page 18 (La. A

pp. 3 Cir. 1989). T

here is no doubt that

Appellee w

as the drater of this policy and that its inclusion of the RV

of Skids on

the Declarations page indicates a valud issue of m

aterial fact which m

ust be

reviewed by the trier of fact.

Appellant has also argued that coverage m

ay indeed exist for the

replacement value of the S

kids under the CG

L and CE

L policies. The C

EL

provides coverage for replacement of covered property, the definition of w

hich

may apply to the S

kids and is at dispute. The C

GL provides coverage for the loss

or damage to propety resulting from

the actions of Sm

ith & A

ssociates. It has been

alleged that Sm

ith & A

ssociates was negligent in causing the loss of the S

kids.

Page 34 of 40

Therefore, A

ppellant has additional issues which have not been answ

ered by the

Appellees, nor have been acknow

ledged by the trial cout.

(ii) Alternatively, A

ppellee Bears B

urden of Loss of RV

for 60 XT

It has been alleged by the Appellant that the A

ppellee was in receipt of the

BLE

Contracts and had know

ledge of Sm

ith & A

ssociates' intent to procure

coverage for the RV

of the Skids. (P

etition, Section 15, as w

ell as Opposition to

Motion for S

umm

ary Judgment, P

age 6) The A

ppellee has failed to provide any

evidence of fact or even inference which indicates A

ppellees handling of the BLE

Contracts and the C

OI w

hich was issued back to the A

ppellant.

Appellant believes that the m

ishandling of documentation providing the

intent of the Appellants constitutes negligence, error and om

ission in violation of

Louisiana law. T

his tortuous relationship was in question before. N

either the trial

cout nor the Appellee provided evidence that this claim

was being observed.

Obviously, by failing to observe a claim

clearly before the cout, the trial

cout has entered a judgment w

hich is against the law and fact, since the law

dictates that the Appellee be responsible for its duties to A

ppellant and the facts

clearly show that a genuine issue of m

aterial fact remains concerning A

ppellee's

satisfaction of this duty.

Error 4:

The T

rial Court E

rred in Granting A


Sum

mary Judgm

ent as There E



Page 35 of 40

Fact as to W

hether the Appellee H

as Other D

uties to Appellant U

nder theC

ontract which R

emain U

nsatisfied or Which W

ere Breached.

The trial cout has decided w

ithin its Judgment that the A

ppellant and Sm

ith

& A

ssociates' claims w

ere dismissed due to m

erely two factors: (1) that the policy

does not contain coverage for the 70 XT

; (2) that the policy only provides coverage

for actual cash value. See E

xhibit A, Judgm

ent.

The trial cout has failed to exam

ine the Appellant's claim

s that additional

contractual duties remain regarding the A

ppellee's failure to adjust its claims for

insurance proceeds. In the petition, Appellant stated that the A

ppelle "failed to

provide insurance coverage for the replacement value of the stolen

equipment." (P

etition, Section 15). T

his sentiment is reflected in the C

ross-Claim

s

asseted by Sm

ith & A

ssociates, wherein they asset general claim

s related to

Appellee's failure to properly and tim

ely adjust claims m

ade by Appellant. O

nce

again, these claims w

ere entirely omitted from

the Appellee's M

otion for Sum

mary

Judgment and not reflected in the Judgm

ent.

An insurer ow

es to his insured a duty of good faith and fair dealing. The

insurer has an affirmative duty to adjust claim

s fairly and promptly and to m

ake a

reasonable effot to settle claims w

ith the insured or the claimant, or both. A

ny

insurer who breaches these duties shall be liable for any dam

ages sustained as a

result of the breach.

Page 36 of 40

Under La. R

.S. 22:1220, an insurer w

ill be liable for "any one of the

following acts, if know

ingly comm

itted or performed ...

(1) Misrepresenting petinent facts or insurance policy

provisions relating to any coverages at issue.(2) F

ailing to pay a settlement w

ithin thirty days ateran agreem

ent is reduced to writing.

(3) Denying coverage or attem

pting to settle a claim on

the basis of an application which the insurer know

s was

altered without notice to, or know

ledge or consent of, theinsured...

(5) Failing to pay the am

ount of any claim due any

person insured by the contract within sixty days ater

receipt of satisfactory proof of loss rom the claim

antw

hen such failure is arbitrary, capricious, or without

probable cause.(6) F

ailing to pay claims pursuant to R

.S. 22:658.2

when such failure is arbitrary, capricious, or w

ithoutprobablecause.35

Furtherm

ore, a cause of action for an insured against an insurer for dealing in

bad faith when handling a claim

does not rest solely on La. Rev. S

tat. Ann. §

22:1220. Sm

ith v. Audubonlns. C

o., La.App. 94-1571, 656 S

o. 2d 11, 1995 La.

App. LE

XIS

1100 (La.App. 3 C

ir. May 3 1995). T

herefore, Appellants m

ay rely on

general bad faith provisions in order to find remedy.

Surely, A

ppellants claims along w

ith the allegations made by S

mith &

Associates represent at least one genuine issue of m

aterial fact for the cout to

consider. At the least, the trial cout's failure to enter judgm

ent as to these claims,

and provide notice of observation calls into question the value of the Judgment's

determination that all claim

s are dismissed.

Page 37 of 40

Error 5:

The T

rial Court E

rred in Granting A


Sum

mary Judgm

ent Because it F

ailed to Adjudicate, H

ear or Observe

Contract and T

ort Claim

s Which W

ere Before the C

ourt.

Appellant has put foth various instances of claim

s which w

ere not observed

and consequently unsettled by the trial cout, even though the Judgment indicates

that all claims are dism

issed. Sim

ilar to Appellant's claim

s, Sm

ith & A

ssociates'

claims w

ere dismissed w

ithout being heard. While A

ppellant does not assume to

have the right to discuss the substantive nature of Sm

ith & A

ssociates' claims, it

does point out the objective observation that the Motion for S

umm

ary Judgment

and Judgment fail to notice these claim

s, though they are inevitably dismissed.

Appellant has put foth im

plied tot and contract claims related to, (1) failure

to properly adjust claims for coverage and (2) failure to provide coverage. T

hese

assetions call into account claims for negligence, negligent supervision, negligent

handling, violations under Title 22, and general breach of contract claim

s, among

others. Due to the infancy of the proceedings, A

ppellant's claims w

ere unable to

develop, but were inevitably before the C

out for determination.

By law

, a judgment w

hich adjudicates fewer than all claim

s shall not

constitute a final judgment for the purpose of an im

mediate appeal. La. C

ode Civ.

Proc. at. 1915(B

)(2). Thus, this C

out would be required to dism

iss the appeal and

order the trial cout to continue in its adjudication of the proceedings. City of N

ew

Orleans v. H

owenstine, 98-2157 (La. A

pp. 4 Cir. 5/5/99), 737 S

o. 2d 197; Narcise

Page 38 of 40

v. Jo Ellen S

mith H

osp., 98-0918, 98-2417 (La. App. 4 C

ir. 3/10/99), 729 So. 2d

748, writ denied, 99-0953 (La. 5/28/99), 743 S

o. 2d 679; Deal v. H

ousing

Authority of N

ew O

rleans, 98-1530 (La. App. 4 C

ir. 2/17/99), 735 So. 2d 685, w

rit

denied, 99-0728 Pg 2 (La. 6/18/99), 745 S

o. 2d 21; Jackson v. Am

erica's Favorite

Chicken C

o., 98-0605 (La. App. 4 C

ir. 2/3/99), 729 So. 2d 1060. W

hile this does

not favor the Appellant's argum

ent that Sum

mary Judgm

ent was im

proper, it does

call into the obligation of the trial cout to continue to hear the claims before it.

If the trial couts actions in not giving creedance to the Appellant's

allegations should be determined failures to identiy valid and genuine issues of

material fact then the Judgm

ent should be overtuned so that a trier of fact can

make determ

inations as to the claims. H

owever, if this C

out feels compelled that

the failure to observe claims w

ere simply failures to adjudicate those claim

s, than

the claims should rem

ain in the trial cout for adjudication.

VI. C

onclusion

Appellant argues that a grave injustice has been done unto it by the trial

cout's failure to observe vital factual allegations which provide suppot for the

claims it presented against A

ppellee. Appellee's failure to respond sufficiently, or

in some cases failure to respond at all, actually acted to futher substantiate those

factual assetions. Appellant feels that A

ppellee has failed to satisy its burden to

Page 39 of 40

the trial cout and that Appellant has accurately provided the trial cout w

ith more

than at least one genuine issue of material as to each of its claim

s.

Appellee's failure to present a sufficient or tim

ely motion for sum

mary

judgment, nor one suppoted by sufficient evidence, provides additional objective

observation leading to the insufficiency of the Judgment.

Therefore, for the foregoing reasons, this C

out should reverse the trial

cout's granting of Appellee's M

otion for Sum

mary Judgm

ent.

VII. C

ertiicate of Service

I, Scott G

. Wolfe, Jr., of W

olfe Law G

roup, L.L.C, hereby cetiy that a copy

of this Appellant B

rief was m

ailed via regular U.S

. Mail, postage prepaid, to

counsel of record for Appellee, P

ierce A. H

amm

ond, II, 650 Poydras S

t., Suite

1400, New

Orleans, LA

70130, on July 3, 2008.

VI. E

xhibits

Exhibit A

-Judgm

ent Appealed F

rom

Respectfully S

ubmitted,

Scott G

.Wolfe, Jr. (30122)

Wolfe Law

Group, L.L.C

.4821 P

rytania Street

New

Orleans, Louisiana 70115

T:

(504) 894-9653F

:(866)761-8934

Page 40 of 40

BO

TT

OM

LINE

EQ

UIP

ME

NT

, L.L.C.

NO

. 64,966 DIV

ISIO

N"C

VE

RS

US

29th JUD

ICIA

L DIS

TR

ICT

CO

UR

TP

AR

ISH

OF

ST

. CH

AR

LES

SM

ITH

& A

SS

OC

IAT

ES

CO

NS

ULT

ING

, L.L.C, E

T A

LS

TA

TE

OF

LOU

ISIA

NA

rnar-oV

T3=.1

JUD

GM

EN

TrnCO

The M

otion for Sum

mary Judgm

ent of Travelers P

ropety and Casualty

y of..i*

-- iA

merica w

as brought on for hearing on Novem

ber 30,2007.(—

-~>

*•'' .'¦-.'¦ 11

=c—

.'CJ

roP

resent were:

Peirce A

. Ham

mond, II on behalf of T

ravelers Property and C

asualty jjSbm

pany of

Am

ericaM. T

odd Alley on behalf of B

ottom Line E

quipment, L.L.C

.

After consideing the pleadings, evidence and argum

ents of counsel,

IT IS

HE

RE

BY

OR

DE

RE

D, A

DJU

DG

ED

AN

D D

EC

RE

ED

that Travelers P

roperty and

Casualty C

ompany of A

merica's M

otion for Sum

mary Judgm

ent be and is hereby GR

AN

TE

D.

The C

ourt finds that Travelers P

roperty and Casualty C

ompany of A

meica's policy only covers

the 60xt skid steer and does not cover the 70?ct skid steer. Futherm

ore, the policy only provides

for the payment of actual cash value and not for the paym

ent of replacement cost. F

urthermore,

Travelers P


ompany of A

meica has paid the actual cash value for the 60xt

skid steer. Therefore, all claim

s against Travelers P

ropety and Casualty C

ompany of A

merica

by Bottom

Line Equipm

ent, L.L.C. and all claim

s iled in the Answ

er and Cross-C

laim of S

mith

& A

ssociates Consulting, L.L.C

. against Travelers P


ompany of A

merica

be and are hereby DIS

MIS

SE

D, w

ith prejudice, and with each party to bear their ow

n costs.

This i

day of,

2008.

oA.

cJU

DG

E¦>'

-f.¦"

4**' JB

Jft

*i&

/*-

As

scott @ wolfelaw. (866)761-8934 Louisiana Bar No. … · Company of Ameica 4821 Prytania Street...

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Transcript of scott @ wolfelaw. (866)761-8934 Louisiana Bar No. … · Company of Ameica 4821 Prytania Street...