Maxie v. Bates

338 So.3d 564

Judy MAXIE, Plaintiff-Appellant

v.Annie BATES, Marlos Bates & Foremost Insurance Group, Defendants-Appellees

No. 54,256-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered April 13, 2022

GORDON McKERNAN INJURY ATTORNEYS, By: H. Dean Lucius, Jr., Counsel for Appellant, Judy Maxie

BOLEN, PARKER, BRENNER, LEE & MILLER, LTD., By: Daniel G. Brenner, Alexandria, Jonathan Asher Cobb, Counsel for Appellee, Foremost Insurance Company Grand Rapids, Michigan

LUNN IRION LAW FIRM, By: Gerald M. Johnson, Jr., Shreveport, Counsel for Appellees, Annie Bates & Marlos Bates

LUNN IRION LAW FIRM, By: Joseph Martin Lattier, Shreveport, Counsel for Appellee, United Service Automobile Association

Before MOORE, COX, and STEPHENS, JJ.

STEPHENS, J.

Plaintiff-appellant, Judy Maxie, has appealed from the trial court's grant of summary judgment in favor of defendant-insurer, Foremost Insurance Company, based on the finding that the business pursuits exclusion contained in its fire policy did not provide coverage for Ms. Maxie's injuries. For the reasons set forth below, we affirm the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

At approximately 3:03 a.m. on December 16, 2017, a fire began at the residence located at 207 W. 69th Street in Shreveport, Louisiana. The home was owned by the children of Annie Bates ("Ms. Bates"), who managed it and several other rental properties in Shreveport. At the time of the fire, the entirety of the residence was leased to Ms. Bates’ nephew, Mickey Yearling ("Yearling"). Yearling had been living at the home for approximately seven years prior to the fire. Each year the parties executed a one-year lease which provided for a monthly rental payment of $600.00. Ms. Maxie was living with Yearling on December 16, 2017, having moved in with him about three years previously. Ms. Maxie, who was asleep on a couch inside the residence at the time of the fire, sustained second degree burns to her right arm, back, chest, and face, and suffered from smoke inhalation.

On the date of the fire, the residence was covered by a "Dwelling Fire One Policy-Owner Occupied" policy issued by Foremost to Ms. Bates. The policy excluded coverage for bodily injury arising from any business pursuit, as well as for bodily injury to any persons other than the insured(s) regularly residing on the premises. Yearling's lease covered the entire residence, and neither Ms. Bates nor the owners ever resided therein during Yearling's tenancy.

Ms. Maxie filed suit against defendants, Ms. Bates, Marlos Bates,¹ and Foremost, on December 11, 2018, seeking damages for injuries she sustained as a result of the fire. Foremost filed its answer on February 14, 2019, alleging, inter alia , that its policy provided no coverage for Ms. Maxie's losses. Foremost filed a motion for summary judgment on September 25, 2019, urging that because the Bates defendants did not reside on the property at the time of the fire that caused Ms. Maxie's alleged injuries, her claim arises out of a business pursuit of the Bates defendants and is clearly excluded from coverage under the insurance policy issued by Foremost. There being no genuine issue of material fact as to this exclusion, Foremost alleged, it is entitled to judgment as a matter of law. Ms. Maxie filed a brief setting forth her opposition, a hearing was held, and the trial court's judgment denying summary judgment was rendered on December 9, 2019.²

Foremost filed a second motion for summary judgment on November 5, 2020, asserting that because Ms. Maxie was a resident of the dwelling when the fire occurred, coverage for her claim is excluded. Foremost also re-urged its business pursuits exclusion argument. Ms. Maxie's opposition to summary judgment was filed on February 12, 2020. A hearing was held on March 1, 2021, and the trial court granted the motion for summary judgment, finding that the business pursuits exclusion applied and there was no coverage under the fire policy. Judgment granting the summary judgment motion and dismissing plaintiff's claims against Foremost with prejudice was signed on March 15, 2021. It is from this judgment that Ms. Maxie has appealed.

DISCUSSION

Ms. Maxie first asserts that Exhibit 4, a policy entitled "Dwelling Fire One Policy-Owner Occupied" filed in support of Foremost's motion for summary judgment is marked "sample" on every page; it was not executed by any of the parties to this litigation; and, there is a question as to the controlling terms of the policy that were applicable at the time of the fire that caused Ms. Maxie's injuries. Thus, there is a genuine issue as to whether the terms of the sample policy and actual policy are identical, similar, or wholly different.

Foremost argues that this issue was not raised before the trial court, but has been asserted for the first time on appeal, citing U.R.C.A. Rule 1-3, which provides:

The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.

Appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Thomas v. Bridges , 2013-1855 (La. 5/7/14), 144 So. 3d 1001 ; Hatfield v. Herring , 54,048 (La. App. 2 Cir. 8/11/21), 326 So. 3d 944, writ denied , 2021-01377 (La. 12/7/21), 328 So. 3d 424 ; Jacobs v. GEICO Indemnity Co. , 52,372 (La. App. 2 Cir. 9/26/18), 256 So. 3d 449. As this issue is not properly before us (and is undermined if not negated by the substantive arguments of Ms. Maxie, which in fact rely on language taken from this very policy), we decline to address this argument.

Ms. Maxie next urges that the applicability of the business pursuits exception in the Foremost fire policy was previously before the trial court on a motion for summary judgment, and the motion was denied. Foremost notes that the trial court specifically indicated that it was welcome to refile the motion once additional discovery had been conducted. Specifically, at the hearing on the instant motion, the trial court observed:

I made my ruling last time and indicated that the defendants were free to refile the motion for summary judgment. I know that there were, I think there was some depositions to be taken....

Foremost did, in fact, introduce new evidence in support of the second motion for summary judgment: the deposition of Annie Bates, and another copy of the fire policy (although this one was without the Declarations Page that had been attached to the copy of the policy introduced with the first motion for summary judgment).³ However, because a party may re-urge a previously denied motion for summary judgment, the initial denial of summary judgment on an issue does not bar a second motion for summary judgment on the same issue. Rain and Hail , L.L.C. v. Davis , 49,813 (La. App. 2 Cir. 5/20/15), 165 So. 3d 1204 ; Simpson v. Davidson , 35,048 (La. App. 2 Cir. 10/31/01), 799 So. 2d 652 ; State ex rel. Div. of Admin. , Office of Risk Management v. National Union Fire Ins. Co. of Louisiana , 2010-0689 (La. App. 1 Cir. 2/11/11), 56 So. 3d 1236, writ denied , 2011-0849 (La. 6/3/11), 63 So. 3d 1023. As noted by this Court in Lloyd v. Shady Lake Nursing Home, Inc. , 47,025 (La. App. 2 Cir. 5/9/12), 92 So. 3d 560, writ denied , 2012-1318 (La. 9/28/12), 98 So. 3d 844, the denial of a motion for summary judgment is merely an interlocutory ruling that does not bar reconsideration of the same issues raised in the unsuccessful motion.

Ms. Maxie next argues that "the trial court was incorrect when it stated at the March 1, 2021, hearing that plaintiff failed to attach documents to be considered at the hearing on the motion for summary judgment." The record, however, shows that Ms. Maxie did not attach any exhibits to her opposition. This argument is without merit, since, as recognized by plaintiff herself, the complained-of language came from the fire policy itself, and the trial court had the entire policy before it for consideration, introduced by Foremost as Exhibit 4 in support of the motion for summary judgment.

Ms. Maxie's final argument is that there is a genuine issue of material fact as to whether the business use exclusion of the fire policy applies in this case. According to plaintiff, the policy contains sections with differing language that, when applied, produce two different results under the facts of this case. Therefore, summary judgment was not proper, and this Court should reverse the trial court's judgment.

On the other hand, Foremost urges the Court to affirm the trial court's judgment as the policy clearly and unambiguously defines the term "business" and, under the facts of this case, the business pursuits exclusion applies, and the Foremost fire policy does not provide coverage for Ms. Maxie's injuries.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every civil action (except for certain domestic matters). The procedure is favored and to be construed to accomplish those ends. La. C.C.P. art. 966(A)(2) ; Murphy v. Savannah , 2018-0991 (La. 5/8/19), 282 So. 3d 1034 ; Dietle v. LaFleur , 54,100 (La. App. 2 Cr. 9/22/21), 328 So. 3d 540. Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Guidry v. Brookshire Grocery Co. , 2019-1999 (La. 2/26/20), 289 So. 3d 1026 ; Murphy, supra ; Babcock v. Blackman , 53,931 (La. App. 2 Cir. 5/5/21), 317 So. 3d 899.

Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment. Bernard v. Ellis , 2011-2377 (La. 7/2/12), 111 So. 3d 995 ; Kansas City Southern Railway...