Guy Charles Perrodin, II. v. Western World Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

24-524

GUY CHARLES PERRODIN, II

VERSUS

WESTERN WORLD INS. CO., ET AL.

*************** ORTEGO, J., dissents and assigns written reasons.

I respectfully dissent as to the majority’s opinion affirming the trial court’s granting a motion for summary judgment in favor of Western World Insurance Company (“Western”) and dismissing Plaintiff, Guy Charles Perrodin, II’s (“Perrodin”) claim against Western World Insurance Company.

I agree with the majority that, generally, a CGL policy, such as Western’s policy, and specifically the exclusion(s) for “Your product” and “Your work” would generally exclude coverage for most poor workmanship and defective construction claims as to the parties to this insurance contract. However, as an appellate court, our review of each case is as to the specific set of facts and evidence presented, along with the underlying and unique relationship that existed between the parties at that time.

As this court is aware, the entire policy and exclusions must be considered in making a determination whether coverage applies. LeBlanc v. Aysenne, 205-297 (La. 1/19/06), 921 So.2d 85; Peterson v. Schimek, 98-1712 (La. 3/2/99), 729 So.2d 1024; Louisiana Insurance Guaranty Association v. Interstate Fire & Cas. Co., 630 So.2d 759 (La. 1994).

Additionally, this court has previously acknowledged that if there are mixed question of fact and law, such as in this coverage issue, it is for the trier of fact, in this case, the judge or jury, to decide. Sonnier v. Diversified Health Care, Inc., 22-420 (La.App. 3 Cir. 4/14/22), 364 So. 3d 1213.

The trial court, along with the majority of this panel, considered the “Your Product” -Exclusion L and the “Your Work”- Exclusion K, standing alone, in denial of coverage and dismissal of plaintiff’s claims, yet apparently did not consider those exclusions in connection with Exclusion J of this CGL policy.

The CGL policy Exclusion J, in pertinent part, includes the following (emphasis added):

J. Damage Property

“Property damage” to:

....

(2) Premises you sell, give away or abandon, if the “property damage” arises out of any part of those premises;

....

“Paragraph (2) of this exclusion does not apply if the premises are “your work” and were never occupied, rented or held for rental by you.”

Here, the affidavit of Oak Alley’s owner states and confirms that neither he, individually, nor Oak Ally ever occupied, rented or held the property for rental purposes. The undisputed evidence further shows that the sale of these premises was a transaction only between Stymest and Perrodin, and there was no contract between the plaintiff and defendants to have this house built. Additionally, the only parties to this CGL policy were Western and Oak Alley, as neither Stymest nor Perrodin were parties thereto. Thus, showing there exists a mixed question of fact and law as to the issue of coverage, which is for the trier of fact to determine.

Finally, a review of the record shows that both parties submitted contradictory evidence to support their respective positions at the hearing as to this coverage issue, and specifically as to the issue of whether the property/premises sold truly “fits” within the policy’s definition(s) of “Property Damage,” “Your Product,” and the “Your Work,” and as to the issue of Plaintiff’s claims being excluded by the exclusions K and L. Thus, the trial court reviewed and erroneously weighed the contradictory evidence presented by the parties, found in favor of the Defendants’ evidence and granted their motion for summary judgment. However, it is still the law that a motion for summary judgment is not a substitute for a trial on the merits and 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. Hines v. Garrett, 04-806 (La. 6/25/04), 876 So.2d 764.

In dissenting, this writer is not attempting to make any statement as to the merits of this matter. Quite simply, at this stage of litigation, the unique and specific facts of this case are such that I would find that there does exist genuine issues of material fact which, by law, precludes the granting of summary judgment. Therefore, I would reverse the trial court and remand this matter for a full trial on the merits.

GJO