Bryan Thayer Versus Andrew Nierman and Amica Mutual Insurance Company

BRYAN THAYER NO. 24-C-311

VERSUS FIFTH CIRCUIT

ANDREW NIERMAN AND AMICA MUTUAL COURT OF APPEAL INSURANCE COMPANY STATE OF LOUISIANA

August 14, 2024

Linda Wiseman First Deputy Clerk

IN RE AMICA MUTUAL INSURANCE COMPANY

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B. DARENSBURG, DIVISION "C", NUMBER 827-731

Panel composed of Judges Stephen J. Windhorst, John J. Molaison, Jr., and Amanda L. Calogero, Pro Tempore

WRIT DENIED

Relator, Amica Mutual Insurance Company (“Amica”), seeks supervisory review of the trial court’s denial of its motion for summary judgment. For the following reasons, this writ application is denied.

After an opportunity for adequate discovery, the court shall grant a motion for summary judgment if the motion, memorandum, and supporting documents show no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). An insurer seeking to avoid coverage through summary judgment bears the burden of proving the applicability of an exclusion within a policy. Doerr v. Mobil Oil Corp., 00-947 (La. 12/19/00), 774 So.2d 119, 124, modified on other grounds on reh’g, 00-947 (La. 3/16/01), 782 So.2d 573. A court cannot grant a summary judgment motion and declare a lack of coverage under an insurance policy 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. Beck v. Burgueno, 43,557 (La. App. 2 Cir. 9/17/08), 996 So.2d 404, 409. Insurance contract exclusionary provisions are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Herzog Contracting, 40,342 (La. App. 2 Cir. 12/16/05), 918 So.2d 516, writ denied, 06- 154 (La. 4/24/06), 926 So.2d 542. Appellate courts review summary judgments de novo using the same criteria trial courts apply to determine whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087.

24-C-311

After a de novo review of the writ application and the opposition, we find no error in the denial of the motion for summary judgment. We find that genuine issues of material fact exist as to Andrew Nierman’s intentions on the night of the incident, considering that he was intoxicated, and as to whether Mr. Nierman bit Bryan Thayer’s nose off in self-defense. Mr. Nierman’s deposition testimony showed that at the time he hit Mr. Thayer, he had been drinking alcohol for many hours and was intoxicated. It also showed that at some point after Mr. Nierman arrived at City Bar, he was assaulted and punched in the face with force enough to cause his eye to bleed and which knocked him to the ground. In his affidavit, Mr. Nierman confirmed that he was intoxicated, had recently been attacked by an unknown assailant, was suffering from a head injury due to that attack, was not in a normal state of mind due to his head injury and intoxication, believed he was acting in self-defense, made a knee-jerk reaction without time to consider the consequences, did not consciously desire the alleged injuries sustained by Mr. Thayer, and did not know the alleged injuries were substantially certain to follow his actions.

We also find that there are genuine issues of material fact as to the actual policy language Amica is relying upon to deny coverage to Mr. Nierman, since Amica has produced more than one policy.

Based on a review of the insurance policy and the pleadings herein, we cannot find that the policy unambiguously excludes coverage for this incident as a matter of law. Accordingly, on the showing made, this writ application is denied.

Gretna, Louisiana, this 14th day of August, 2024.

ALC SJW JJM

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 08/14/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-C-311 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable June B. Darensburg (DISTRICT JUDGE) Joseph S. Piacun (Respondent) Sean P. Mount (Relator) Bryce M. Addison (Relator)

MAILED Max M. Chotto (Respondent) Christopher P. Lawler (Respondent) Attorney at Law Attorney at Law 1132 Derbigny Street 2701 Metairie Road Gretna, LA 70053 Metairie, LA 70001