author: laPARRO, J.

text:
    Lynn S. BOLAND and Her Children, Monique Elizabeth Fox and Margeaux Lynn Fox v. WEST FELICIANA PARISH POLICE JURY, Coregis Insurance Company, Branco, Inc., John Brandt, and Norris Decoteau.
    No. 2003 CA 1297.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Rehearing Denied Aug. 18, 2004.

      William D. Grimley, Baton Rouge, for Plaintiffs-Appellants Lynn S. Boland, et al.
    John David Ziober, Kennon, Odom & Dardenne, L.L.C., Baton Rouge, for Defendants-Appellees West Feliciana Parish Police Jury and Coregis Insurance Co.
    Michael 0. Hesse, Hesse & Butterworth, St. Francisville, for Defendant-Appellee Norris Decoteau.
    John P. Wolff, III, Baton Rouge, for Defendants Branco, Inc., John Brandt, and Transportation Insurance Co.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   laPARRO, J.

Lynn S. Boland, who was injured in a fall from a rural bridge while attempting to ride her bicycle across it, appeals a judgment granting summary judgments in favor of the West Feliciana Parish Police Jury (the parish), its insurer, Coregis Insurance Company (Coregis), and Norris Decoteau, and dismissing her claims against them. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Boland was a proficient cyclist who began riding road bicycles in 1983, rode an average of 100 to 150 miles each week, participated in numerous races, and frequently won cycling competitions she entered. On August 5, 2000, Boland was riding with a group of about seventeen other cyclists on Island Road in West Feli-ciana Parish, along a route that took them over the Williams Creek bridge. Island Road is a rural, one-lane, parish road used as access for local residents and for timber, sand, and gravel hauling. After washing out several times, the Williams Creek bridge was completely rebuilt in 1999: its deck was constructed from the beds of railroad cars; the surface was covered with crushed limestone aggregate; and metal guardrails were placed on each side. Boland was familiar with the road and the bridge, having cycled this route several times before without incident. As she approached the bridge, Boland reduced her speed to 10-15 miles per hour and directed her bicycle toward the “wheel track” on the right side of the bridge. Shortly after she encountered the surface of the bridge, her rear wheel began sliding. She attempted to pedal and steer out of the skid, but could not regain control. The bicycle continued to fishtail and, within seconds, it leaned to the left and]¿iit the metal railing on the left side of the bridge. Unable to right herself or dismount, Boland and the bicycle fell over the left side of the bridge into the dry creek bed about twenty feet below. The other cyclists in the group, many of whom were riding ahead of her, crossed the bridge without incident.

Boland was severely injured and allegedly has some permanent disabilities due to this accident. She and her daughters sued the parish, Coregis, Decoteau, Bran-co, Inc. (Branco), and Branco’s owner, John Brandt, claiming damages for Bo-land’s medical expenses, mental and physical pain and suffering, past and future wage losses, and loss of enjoyment of life, as well as her daughters’ consortium losses. Boland stated in her original and supplemental petitions that the cause of her accident was the negligent design and construction of the bridge, in that it was narrower than the dimensions of the roadway; was surfaced with gravel instead of a solid surface; had gravel stacked up near the railing, thus “raising users of the bridge higher above the railing”; had a railing of substandard height; and had a surface that was inconsistent with the adjoining roadway surfaces. She claimed the parish owned and constructed the bridge or contracted to have it constructed; that Core-gis insured the parish; that Branco and Brandt constructed the bridge according to plans they designed or plans provided by the parish and/or its engineer, Deco-teau; that Branco and Brandt were insured by Transportation; and that the defendants were jointly and solidarily liable for her damages.

Eventually, Boland filed a motion for summary judgment against all the defendants on the issue of liability. Decoteau and the parish defendants filed cross-motions for summary judgment. After a hearing concerning only the motions filed by Boland and the parish defendants, the court denied both motions on December 11, |42002. This judgment was not appealed. The parish defendants re-urged their motion, emphasizing that LSA-R.S. 9:2800 was applicable to the claims against the parish and had not been considered by the court. Another hearing was held, at which the court heard arguments concerning Decoteau’s and the parish defendants’ motions for summary judgment. Following the hearing, the court granted their motions and dismissed Boland’s and her daughters’ claims against them. This appeal followed.

SUMMARY JUDGMENT

An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. West v. Clarendon Nat’l Ins. Co., 99-1687 (La.App. 1st Cir.7/31/00), 767 So.2d 877, 879. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Johnson v. Evan Hall Sugar Co-op., Inc., 01-2956 (La.App. 1st Cir.12/30/02), 836 So.2d 484, 486.

On a motion for summary judgment, if the moving party will not bear the burden of proof at trial on the matter before the court on the motion, the moving party must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and summary judgment must be granted. LSA-C.C.P. art. 966(C)(2); McGee v. State ex rel. DOTD, 00-2706 (La.App. 1st Cir.3/28/02), 813 So.2d 625, 628. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the Lease. Davis v. Specialty Diving, Inc., 98-0458 and 98-0459 (La.App. 1st Cir.4/1/99), 740 So.2d 666, 669, writ denied, 99-1852 (La.10/8/99), 750 So.2d 972.

A trial judge cannot make credibility determinations on a motion for summary judgment. A party seeking a summary judgment is entitled to a favorable judgment only if there is no genuine issue as to a material fact. LSA-C.C.P. art. 966(B). The credibility of a witness is a question of fact. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). In deciding a motion for summary judgment, the court must assume that all of the affiants are credible. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228, 234.

MOTION TO STRIKE

The parish defendants moved this court to strike a number of Boland’s exhibits that were attached to the memorandum in support of her motion for summary judgment, alleging that because they were not attached to or adopted by reference in the motion and were not separately introduced at the hearing, they were not properly part of the record at the district court and should not be considered by this court. The memorandum and attached exhibits were referenced in Boland’s motion with the statement, “as explained in the accompanying memorandum and exhibits,” and were filed in the record at the district court, along with the motion and memorandum.

Article 967 of the Louisiana Code of Civil Procedure describes the type of documentation a party may submit in support of or in opposition to a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, 231. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts that would be admissible in evidence, and shall show affirmatively that the affi-ant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits. LSA-C.C.P. art. 967. A document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, is not of sufficient evidentiary quality |fion summary judgment to be given weight in determining whether or not there remain genuine issues of material fact. Sanders v. J. Ray McDermott, Inc., 03-0064 (La.App. 1st Cir.11/7/03), 867 So.2d 771, 775.

If the other criteria of Article 967 are met, evidence submitted as attachments to the memorandum in support of or in opposition to the motion for summary judgment may properly be considered by the court. Aydell v. Sterns, 98-3185 (La.2/26/99), 731 So.2d 189, 189. Affidavits in support of or in opposition to motions for summary judgment must be filed into evidence at the hearing on the motion or filed into the record in order for the affidavits to be part of the record on appeal. See LSA-C.C.P. art. 966; Hopper v. Crown, 560 So.2d 890, 892 (La.App. 1st Cir.1990). An affidavit filed into the record as part of the support for or opposition to a motion for summary judgment is part of the record on appeal, which the court of appeal may consider. See Hutchinson, 866 So.2d at 232. Although Articles 966 and 967 do not permit a party to use unsworn and unverified documents as summary judgment evidence, if both parties offer identical copies of documents, indicating that there is agreement between them as to their authenticity, the court may accept them. Harvey v. Francis, 00-1268 (La.App. 4th Cir.3/21/01), 785 So.2d 893, 896.

Citing Aydell, supra, Boland asserts that all the documents attached to her memorandum and filed in the record were properly “on file” for purposes of her opposition to the defendants’ motions for summary judgment. In Aydell, the supreme court stated the court of appeal erred in holding that the district court could not rely on the evidence submitted by the defendant in support of its motion for summary judgment, simply because the affidavits and depositions were attached to the memorandum in support of the motion, rather than to the motion itself. Aydell, 731 So.2d at 189-90. The case was remanded to the court of appeal to consider this evidence. In an even more recent statement on this issue, the supreme court emphasized the words, “on file,” in Article 966(B), and stated that as long as an |7affidavit opposing the motion for summary judgment was filed in the record, it could be considered by the court. Hutchinson, 866 So.2d at 232.

Taking our cue from the supreme court’s statements in Aydell and Hutchinson, we conclude that as long as affidavits and depositions are filed in the record in connection with a motion for summary judgment, they may be considered by the district court and this court, whether filed with the motion or a memorandum. However, we note that those cases dealt only with affidavits and depositions, which are specifically described as admissible in Articles 966 and 967 of the Code of Civil Procedure; neither ease addressed the admissibility of other documents. We do not consider those cases as suggesting that “anything goes,” as long as it is stapled or paper-clipped to a motion or memorandum, is referred to in one of those documents, and is filed in the record.

Using the criteria in Articles 966 and 967 to evaluate the parish defendants’ motion to strike, we note the following. The parish defendants seek to strike photographs of the bridge and the bicycle, which were attached to Boland’s memorandum; yet they submitted those same photographs in connection with Boland’s deposition, which was attached to their motion for summary judgment. Therefore, the authenticity of the photographs is admitted. Furthermore, as attachments to Bo-land’s deposition that were identified, verified, and referred to in the deposition, the photographs were admissible on that basis also. All of the affidavits to which the parish defendants object meet the criteria of Article 967, were filed in the record, and were properly considered. Excerpts from various depositions were filed in the record by both parties; all are admissible under Article 966(B). Although the parish defendants objected to Professional Engineering Consultants Corporation (PEC) Project Observation Report No. 2 and to the minutes of the parish police jury meeting of April 13, 1999, they also submitted those same documents in support of their motion, thus laconceding their authenticity and allowing them to be considered.

The following documents were un-sworn, unverified, not admitted by both parties, and not attached to any affidavit or deposition, and therefore, were not admissible: (1) contracts dated January 1999 and March 1999 between the parish and PEC; (2) contract change orders of September 15, 1999, and October 27, 1999; (3) a letter dated June 7, 1999; (4) PEC Project Observation Report No. 5; (5) an Application to the Governor’s Office of Rural Development; (6) a request for payment dated November 8, 1999; (7) parish Budget Message of November 24, 1998; and (8)a contract between Tangipahoa Parish and Branco, Inc. concerning a different project.

In addition, the parish defendants moved to strike portions of Boland’s brief that refer to an excerpt from a transcription of an audio cassette tape recording of the April 13, 1999 meeting of the police jury. Neither this transcript nor the tape recording are in the record. Accordingly, those references will be stricken.

Therefore, the motion to strike is granted in part and denied in part, in accordance with the foregoing discussion.

LIABILITY OF DECOTEAU

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of Louisiana Civil Code article 2315. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 275-76; Racca v. St. Mary Sugar Coop., Inc., 02-1766 (La.App. 1st Cir.2/23/04), 872 So.2d 1117, 1122, writ denied, 04-0698 (La.5/7/04), 872 So.2d 1083.

Duty is a question of law. Simply put, the inquiry is whether a plaintiff has any law—statutory, jurisprudential, or arising from general principles of fault—to support his or her claim. Bow man v. City of Baton Rouge/Parish of East Baton Rouge, 02-1376 (La.App. 1st Cir.5/9/03), 849 So.2d. 622, 627, unit denied, 03-1579 (La.10/3/03), 855 So.2d 315. Where no factual dispute exists and no credibility determinations are required, the legal question of the existence of a duty is appropriately addressed by summary judgment. Griffin v. Shelter Ins. Co., 02-2628 (La.App. 1st Cir.9/26/03), 857 So.2d 603, 605, writ denied, 03-2992 (La.1/16/04), 864 So.2d 635.

Boland’s claims against Decoteau were based on his position as a consulting engineer for the parish before and during the bridge construction. She claimed his plans were used to construct the bridge, and he advised Branco and the parish during the construction process; therefore, he could be held responsible for defects in its design and construction.

Decoteau claimed he had a very limited role in advising the parish on an “as needed” basis concerning specific aspects of the Williams Creek bridge project. He reviewed the “rail car” bridge plans, which were prepared by another engineer and given to him by Branco; he obtained a third bid after the specifications had been established; and he made load limit calculations on the completed bridge. Decoteau contended his duties did not include any design, construction, supervision of construction, or maintenance of the bridge. Decoteau supported his motion with his own affidavit and deposition and with Brandt’s deposition. Decoteau said that if he had seen something that he thought was detrimental to the public, he certainly would have reported that condition, but he did not have general oversight over the project. He did no measurements of rail heights or other aspects of the bridge that did not affect the load limits. Decoteau said the parish did not ask him to do anything concerning the construction of the bridge except the structural examination to determine load limits. |inBrandt confirmed this limited involvement of De-coteau and clarified that the plans for the “rail car” bridge design had been drawn and provided to his company years earlier by a different engineer.

The only opposition consisted of comments by former parish manager, Norman E. “Pete” Heine, referring to Decoteau in his deposition as the parish’s “engineer on the job,” and saying he relied on Decoteau to review the bridge plans and construction and tell him of anything that might be a problem. However, Heine did not describe any specific duties conflicting with Decoteau’s or Brandt’s description of what Decoteau actually did with reference to the project.

In written reasons for judgment, the district court stated the following concerning Decoteau:

Norris [Decoteau] was initially contacted by the Parish Manager, Pete Heine, who asked him to travel to the Covington and Tangipahoa Parish area to look at several of Branco, Inc.’s “rail car” bridges which the Parish Manager was interested in using for creek bridges in West Feliciana Parish. After viewing other bridges of the type[,] the Parish Manager decided they were suitable for use in the Parish of West Feliciana. The Parish then contracted with Norris [Decoteau], who is an engineer and surveyor, to survey the proposed areas of construction and perform a hydraulic study to determine the most feasible location for each of the proposed bridges. [Decoteau] performed a hydraulic/surveying study, assisted the Parish in finding a third bidder for competitive bids with Branco and one other bidder, and made a determination that the support pieces for the bridge were big enough to support load limits which he set in accordance with current engineering standards. [Decoteau] had nothing to do with maintenance, supervision of construction, or design of the bridge in question. The court finds that none of the engineering or surveying work performed by [Decoteau] had anything to do with the accident[,] and the arguments of counsel, pleadings, discovery and supporting affidavits establish no genuine issue of material fact. [De-coteau] is therefore entitled to summary judgment as a matter of law.

These written reasons accurately summarize the evidence, and our de novo review of the record has not revealed anything in Boland’s or the parish defendants’ submissions that would create a genuine issue of material fact concerning Decoteau’s involvement with the design, construction, or maintenance of the bridge, such that liability could be imposed on him for this accident. Boland did not establish that any of Decoteau’s duties affected the bridge conditions that allegedly caused her accident. Therefore, she | ^failed to provide factual support sufficient to establish that she would be able to satisfy her evidentiary burden of proof at trial that Decoteau had a duty to her that was breached and/or that any of his actions or inactions were a cause-in-fact of her accident. Accordingly, the district court did not err in dismissing Boland’s claims against Decoteau on summary judgment.

LIABILITY OF THE PARISH

When the claim against a public entity is based on the condition of property, a plaintiff may proceed under theories of negligence or strict liability. Louisiana Revised Statute 9:2800 governs strict liability claims against a public entity under LSA-C.C. art. 2817, but limits that liability by requiring proof that the public entity had actual or constructive knowledge of the defect and a reasonable opportunity to remedy the defect, yet failed to do so. Henderson v. Nissan Motor Corp., 03-606 (La.2/6/04), 869 So.2d 62, 66. The imposition of liability under general negligence principles requires proof that the defendant had actual or constructive knowledge of the risks and failed to take corrective action within a reasonable time. Hardenstein v. Cook Constr., Inc., 96-0829 (La.App. 1st Cir.2/14/97), 691 So.2d 177, 183, writ denied, 97-0686 (La.4/25/97), 692 So.2d 1093. Therefore, under either negligence or strict liability, for a plaintiff to succeed in an action against a public entity based on the condition of property for which it allegedly had responsibility, the plaintiff must show that (1) the property causing the damage was in the custody of the public entity; (2) the property was defective due to a condition that created an unreasonable risk of harm; (3) the public entity had actual or constructive knowledge of the risk; and (4) the defect was a cause-in-fact of the plaintiffs injury. See Toston v. Pardon, 03-1747 (La.4/23/04), 874 So.2d 791, 798.

Any political subdivision of the state has a duty to maintain, repair, construct, or reconstruct any public road, highway, bridge, or street, or any portion thereof, in a manner that is not unreasonably dangerous for a reasonably prudent driver. LSA-R.S. 48:35(F)(l)(a). Design standards, both at the time of original construction and at the time of the accident, may be relevant factors in determining whether a given stretch of 112roadway presents an unreasonable risk of harm, but are not determinative of the issue. Thorn hill v. State Dep’t of Transp. & Dev., 95-1946, 95-1947, 95-1948, 95-1949, and 95-1950 (La.App. 1st Cir.6/28/96), 676 So.2d 799, 804, writs denied sub nom. Riley v. State Through Dep’t of Transp. & Dev., 96-2014 and 96-2021 (La.11/8/96), 683 So.2d 272.

Defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition of a thing should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. Pitre v. Louisiana Tech Univ., 95-1466, 95-1487 (La.5/10/96), 673 So.2d 585, 591, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996).. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. Hutchinson, 866 So.2d at 235. Whether a condition of a thing is unreasonably dangerous requires consideration of: (1) the utility of the thing; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the complained-of condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activity in terms of the activity’s social utility or whether the activity is dangerous by nature. Id. at 235.

To meet the burden of proof on their motion for summary judgment, the parish defendants had to demonstrate a lack of factual support for some element of Bo-land’s claim. Custody and ownership of the bridge were not contested; the parish defendants directed their arguments on the motion to whether the bridge was defective due to a condition that created an unreasonable risk of harm, and whether the parish knew of the risk.

Boland’s main contentions concerning the hazardous condition of the bridge involve the surface material and the height of the railings. She claims the crushed J^limestone aggregate presented an uneven and unstable surface that caused her bicycle tires to skid, and that the parish created this condition by failing to overlay the bridge with a hard surface when it had the bridge constructed and/or when the adjoining road surface was subsequently overlaid. Boland also claims the railing was too low, partly because it was designed improperly, but also because the gravel on the bridge could shift toward the sides and pile up there. As a result, when her bicycle neared the railing, its tires would be several inches higher than when she was in the center of the bridge, thus reducing the relative height of the railing and eliminating its effectiveness as a barricade. She contends this combination of factors constituted an unreasonably hazardous condition. Boland also insists liability in this case is based on the parish’s failure to comply with LSA-R.S. 48:35, under which she alleges the parish has a duty to design and construct roads and bridges within its purview according to AASHTO standards.

Boland’s first contention on appeal is that, because her claim is not based on strict liability, the knowledge requirements of LSA-R.S. 9:2800 have no application. The argument overlooks the fact that, whether pleading simple negligence or applying 9:2800, the plaintiff must prove the same elements in order to impose liability on a public entity when the claim involves an allegedly defective condition of public property. Under either theory, Boland bears the burden of proof at trial that the bridge was in the custody of the parish, that it was defective due to a condition that created an unreasonable risk of harm, that the parish had actual or constructive knowledge of the risk, and that the defect was a cause-in-fact of her injury. See Bessard v. State, Dep’t of Transp. & Dev., 94-0589 (La.11/30/94), 645 So.2d 1134, 1136.

The parish admitted in its answer to Boland’s petition that it owned the Williams Creek bridge where this accident occurred and that it contracted to have the bridge installed. Based on these facts, Boland contends that, because the parish constructed the bridge, thereby creating the defective condition, its actual knowledge is presumed. This argument begs the question by assuming that some aspect of the design or h ¿construction of the bridge was unreasonably hazardous ab ini-tio. Additionally, the parish points out that, though it contracted with Branco to have the bridge constructed according to plans supplied by Branco, neither the parish nor any of its own employees designed or constructed the bridge, such that the parish would have actual notice of anything that may have been done incorrectly. Boland presented no evidence to the contrary. Therefore, despite these arguments, the parish’s actual or constructive knowledge of the risk remains an element of her cause of action that must be proved.

To support their claim that the bridge surface and railings were not defective and that the parish had no knowledge of any risk, the parish defendants submitted excerpts from Heine’s deposition; excerpts from the deposition of his successor as parish manager, Floyd Leo Younger, Jr.; excerpts from Brandt’s deposition; excerpts from Decoteau’s deposition; excerpts from Boland’s deposition; two affidavits from a professional engineer, T.J. Hirsch; a commitment letter and check concerning the bridge project from the Office of Rural Development; the minutes of the meeting of the parish police jury on April 13, 1999; and PEC Project Observation Reports Nos. 2, 9, and 10 concerning the overlay work on the road. The parish defendants argue that this evidence demonstrates the bridge was not defective as designed and constructed. Further, even if some hazardous condition was present when Boland attempted to cycle across the bridge, the parish did not know of that hazardous condition, and it had not existed for such a length of time that the parish should have been aware of its existence. They also claim AASHTO standards do not apply to this road and bridge, and it was properly designed and constructed for its anticipated use.

Heine testified that he relied on Brandt’s experience in building the “rail car” bridge in accordance with the plans and specifications. He and Younger indicated the hsparish police jury decided to use crushed limestone, instead of concrete, on the bridge surface because it was cheaper. Before the overlay project on Island Road, the road surface leading to the bridge from Highway 61 on the east was asphalt, with gravel on the last 300-500 feet before the bridge; the road surface to the west of the bridge was gravel. After the overlay project, the road surface east of the bridge was asphalt and the road surface west of the bridge was “triple shot.” Both Heine and Younger said no one ever indicated to the parish that the crushed limestone used on the bridge surface was inappropriate or should have been overlaid. They also stated there had been no other accidents involving cyclists on this or any other bridge in the parish, many of which had surface materials inconsistent with the adjoining road surfaces. Brandt testified he would have preferred to use concrete on the bridge, simply because his company would have made more money. But he also said crushed limestone was an acceptable surface for this bridge in this service, and he had so advised the parish. Brandt stated the bridge railings were built to a height of 30 inches.

In his deposition, Decoteau said he did not have a. problem with the surface material on the bridge, because it did not affect the structural stability of the bridge, which was what he had been asked to review for the load limit calculation. He said he would have notified the parish if he would have had any concerns about the use of a crushed limestone aggregate surface. However, he also indicated he assumed the planned road overlay would include the bridge. Had he known that the overlay project for the adjoining road was not going to include the bridge surface, he would have notified the parish that he had concerns about that. He explained that, as a driver, he is always concerned whenever the road surface transitions from asphalt to gravel, “because of the difference in surfaces there, ... I think that it could be pretty dangerous.” But his involvement with the Williams Creek bridge ended when he determined the load limits, and he did not know until this lawsuit that the surface of the bridge had remained crushed limestone after the road was overlaid. Therefore, he did not advise the parish of any such concerns. Decoteau said he did not know if AASHTO standards were applicable to this road and bridge, but he used its calculations as a 11figuideline when computing the load limits. He did no measurements or other' examination of the railings.

Boland said the first time she cycled over the bridge after it was built, the crushed limestone was “deep in some spots,” and she may have walked her bicycle across that time, but on several later trips she was “able to ride on the car track through it without any trouble.” On the day of the accident, she was approaching the bridge from the west, heading in a southeasterly direction toward Highway 61. She recalled that the road surface on that side of the bridge was asphalt — but with some rock in the mixture — and that she knew the road surface on the other side of the bridge was smoother asphalt. As she neared the bridge, she slowed and steered into the car track on the right side. Boland said she did not know what caused her bicycle to skid, but her effort to pedal out of the skid was ineffective and she ultimately veered to the left. When her bicycle hit the left edge of the bridge about halfway across, she momentarily sort of balanced with the guardrail against her hip, then fell over the left side of the bridge to the dry creek bed below. Although at the time she had no idea what caused the skid, she said she later concluded the loose and unstable gravel had caused her rear tire to skid. Boland also said the surface condition of the bridge changed from day to day and from week to week, so she did not know how long the bridge had been in the precise condition that it was in when she had her accident. She could not recall whether any gravel was pushed up near the railing on the day of the accident, because the sequence of events happened so quickly.

Hirsch’s affidavits stated he had been employed as an expert in road and bridge design and accident reconstruction in numerous courts here and in other countries and was one of the principal authors of “Section 13 Railings” of the LRFD Bridge Design Specifications and Commentary adopted by AASHTO in 1994. Portions of this document, along with photographs of the site, construction drawings, maps, and other documents were attached to and referred to in his first affidavit. Hirsch said he had reviewed the accident site, as well as maps, photographs, the adjoining roadways, other rural bridges in the area, other “rail car” bridges constructed by Bran-co, | ^depositions, discovery responses, and the report of Boland’s expert. Hirsch said this one-lane, rural road, with low traffic volume and posted speed limits of 25 miles per hour, was not required to meet the design criteria of AASHTO. Nor did AASHTO design criteria apply to any of the bridges on this road. According to his measurements, the metal bridge rail was 27 inches above the crushed limestone aggregate surface of the bridge. Appendix C of the AASHTO bridge design specifications, of which he was a principal author, stated the minimum height of a traffic railing was 27 inches; Hirsch said this requirement had remained constant since 1953 and was standard in all fifty states. Because this bridge was not specifically designed to carry bicycle or pedestrian traffic, a higher railing was not required. Hirsch further stated that the crushed limestone aggregate surface was not unstable, but was an all-weather, skid-resistant surface suitable for this type of bridge in this type of service. He concluded that the bridge’s design and construction contained no defects and/or hazardous conditions.

Based on this evidence, we conclude the parish defendants demonstrated a lack of factual support that the Williams Creek bridge was defective ■ due to a condition that created an unreasonable risk of harm and that the parish had actual or constructive knowledge of any risk associated with it. Moreover, this evidence supports the parish’s claim that it had no actual or constructive knowledge of any temporary condition of the bridge that may have been hazardous at the particular time when Bo-land attempted to cycle across it. The parish defendants having demonstrated there was a lack of factual support for these essential elements of her cause of action, the burden of proof shifted to Bo-land to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden of proof at trial on these matters. See LSA-C.C.P. art. 966(C)(2).

In the portions of Heine’s deposition submitted by Boland, he acknowledged that he would always prefer to have consistent surfaces, i.e., if the road surface was gravel, the bridge surface should also be gravel or aggregate, whereas if the road surface was asphalt or concrete, the bridge surface should also be concrete. But he also said the crushed limestone aggregate was a reasonable alternative, given the expense of Inconcrete and “the traffic count, the usage, the type of vehicles that were using that particular bridge .... ” Younger stated the parish had received complaints from local residents about the number of cyclists using the rural roads, but he was advised that the parish could not legally restrict the cyclists’ use of public roads.

Boland’s account of the way her accident happened was confirmed by the affidavit of John Sanford, who was riding about fifty yards behind her when she and another cyclist rode onto the bridge. He saw her rear wheel fishtail and, within less than five seconds, she went over the guard rail. Sanford stated, “I fault the surface material on the bridge and the low rail as the cause of the accident.” Charles R. Rome, who was riding to Boland’s right and slightly ahead of her, said in his affidavit that he heard the sound of a wheel sliding. Looking back at Boland, he saw her rear tire sliding in the gravel — first to the left, then right, then back to the left — bringing her near the left railing. Either she or the bike contacted the railing, and she fell over. Rome also opined that the surface material and railing were the sole causative factors of her fall.

Olin K. Dart, Jr., Ph.D., P.E., submitted an affidavit in support of Boland, indicating his qualifications included traffic engineering, highway design, traffic safety, and accident reconstruction, and stating he had been qualified as an expert in each of those fields on numerous occasions in state and federal courts. He had reviewed the site, photographs of the site, the bicycle, Bo-land’s weight and body dimensions, several AASHTO guides, design drawings of this and other “rail car” bridges from Branco, plans for several other rural bridges, design specifications from Louisiana’s Department of Transportation and Development (DOTD) for guardrails and bridges, and depositions. According to his measurements, the railings were 28.5 inches above the center of the bridge, but only 26.5 inches above the gravel “berm” near the edges of the bridge. The bicycle had 26-inch diameter wheels; it was 2.6 feet tall at the crossbar, 3 feet at the center of the handle bar, and 3.15 feet at the top of the seat. Boland is 5 feet, 9 inches tall and weighs 130 pounds. Dart noted that a 1977 AASHTO guide shows 27 inches as a minimum rail height and for bridges on lower volume secondary roads, a three-beam rail mounted 32 inches above the deck was specified. Based on his calculations of the hflCentrifugal force and Bo-land’s account of the way the accident happened, Dart concluded that as she skidded toward the rail, she tried a sharp corrective turn and the bicycle flipped over. Her centrifugal force at that point was above the top of the rail, causing her to topple over it. Dart said more likely than not, a 32-inch rail would have prevented her fall. Dart also noted that since 1961, AASHTO has required skid-resistant characteristics for all bridge floors, a specification that, in his opinion, would eliminate gravel or limestone aggregate as a bridge surface material, due to its inherent instability. He said the surface material naturally migrated to the edges under traffic, such that the bridge rail lost about 2 inches of its retention capability. He concluded the bridge should have been surfaced with a material other than gravel or crushed limestone aggregate and, at the very least, the railing should have been 32 inches high.

Having reviewed all of the evidence de novo, we conclude that Boland did not produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial that the bridge was defective and the parish had actual or constructive knowledge of the risk. Her strongest evidence was Dart’s affidavit, yet even he indicated a 27-inch railing was acceptable, although a 32-inch railing was preferable. His affidavit does not directly rebut Hirsch’s statement that the minimum height for a metal railing was 27 inches, which was standard in all fifty states and was met by the railings in this case. Based on Dart’s own measurements, the railings were designed and constructed to exceed a height of 27 inches. Also, although Dart concluded that the surface material could migrate toward the edges, thus reducing the effective height of the railing, Boland could not say that her tires had, in fact, encountered such a buildup next to the railing or that such a condition existed when she fell. Therefore this conclusion concerning the cause of her fall is based on facts that are not in any of th'e evidence from Boland and the other cyclists who saw her fall. Dart also concluded it was Boland’s attempt to make a “sharp corrective turn” that flipped the bicycle over toward the railing and created the centrifugal force sufficient to carry her over it, not the skid or some fulcrum effect created by the height of the railing itself and contact with it. Finally, although Dart opined a 32-inch railing might have | ^prevented Boland’s fall, this does not establish that it would have, and is internally inconsistent with his measurements showing the bicycle seat was almost 38 inches high and she was five feet, nine inches tall.

Regarding the bridge surface, Dart cited AASHTO standards stating it should be skid-resistant, but did not address Hirsch’s contention — backed up by excerpts from the AASHTO manuals — that one-lane, rural roads and bridges with low traffic volume and low speeds were not required to meet AASHTO design criteria. Moreover, even if the AASHTO criteria were applicable, Dart’s affidavit, taken in context with the other evidence, does not establish that the crushed limestone aggregate surface was unreasonably hazardous. Boland and the other cyclists had traveled this road and this bridge at least half-a-dozen times without any difficulty, and despite the large number of cyclists using the rural roads in the parish, there were no other accidents. The condition of the road and bridge surfaces was known to her, and the crushed limestone on the bridge surface was open and obvious as she approached it. She was the only cyclist using the bridge that day who had any problem navigating it.

Finally, none of the evidence submitted by Boland indicates the parish had any reason to believe the design or construction of the bridge was inherently defective due to the surface material used or the railing height. Nor did she produce any factual support to demonstrate that the parish knew or should have known of any temporarily hazardous condition that may have existed on the day she fell.

In granting the parish defendants’ motion for summary judgment, the district court stated it “finds there was no obvious defect in the bridge and that the plaintiff failed to carry her burden to show actual or constructive notice of an alleged defect .... ” We agree that Boland failed to produce factual support sufficient to establish that she could satisfy her evidentiary burden of proof at trial, that the bridge was defective in design and construction or that the parish had knowledge of any defective condition based either on the bridge’s design and construction or on any temporary condition on the day she tried to cycle across it. Therefore, there was no genuine issue of material fact, and summary judgment was appropriate.

la, CONCLUSION

As discussed above, the motion to strike is granted in part and denied in part. The judgment of the trial court, granting summary judgment in favor of Decoteau, the parish, and Coregis, and dismissing Bo-land’s claims against them, is affirmed. All costs of this appeal are assessed to Boland.

MOTION TO STRIKE GRANTED IN PART AND DENIED IN PART; AFFIRMED.

CARTER, J., concurs in the result.

      . Suit was filed by Lynn S. Boland and her adult daughters; the appeal was also filed by all the plaintiffs.

      . In the record, this defendant’s surname is variously spelled Decoteau, Decateau, or De-cateaux. We have used the spelling shown on his signature, which appears on several attachments to his deposition.

      . This was a partial summary judgment, in that it dismissed Boland’s claims against only some of the defendants. The court designated it as a final judgment, finding there was no just reason to delay, stating it did so in accordance with LSA-C.C.P. art. 1915(B)(1). We note, however, that because the judgment had the effect of dismissing the suit as to some of the parties, it was a final judgment, pursuant to Article 1915(A)(1), and did not have to be designated as such. See Motorola, Inc. v. Associated Indem. Corp., 02-0716 (La.App. 1st Cir.4/30/03), 867 So.2d 715. Given the confusion surrounding the application of Article 1915 at the time this judgment was signed, the court's prophylactic designation of the judgment as final is understandable.

      .Boland's feet were attached to the pedals with toe clips, which are standard equipment for road bicycles.

      .Branco constructed the Williams Creek bridge. Boland later added Branco's insurer, Transportation Insurance Company (Transportation), as a defendant.

      . In describing pleadings filed by the parish and its insurer, Coregis, we will refer to them jointly as the parish defendants.

      . They also filed cross-claims against Deco-teau, Branco, Brandt, and Transportation.

      . Under Article 966(B), any admissions on file can be considered by the court in deciding the motion for summary judgment. When exhibits are submitted by both parties, it is tantamount to an admission as to their authenticity-

      . PEC performed the overlay project for Island Road after the Williams Creek bridge was built.

      . On the exhibit list attached to their motion for summary judgment, the parish defendants describe these minutes as "April 15, 1999 West Feliciana Parish Police Jury Minutes.” However, the minutes are dated April 13, 1999.

      .The parish defendants also moved to strike a commitment letter and check from the Office of Rural Development related to the Williams Creek bridge repair grant, yet these documents were also submitted by the parish defendants and attached as Exhibit G to their motion for summary judgment. Therefore, although not sworn to or certified in any way, their authenticity is admitted.

      . Portions of Heine’s deposition were submitted by Boland and by the parish defendants.

      . In their motion for summary judgment, the parish defendants did not address whether some condition of the bridge caused her to skid and fall. Although they did not concede causation, their arguments and evidence were not directed toward this element of Boland’s cause of action.

      . Boland and her witnesses often referred to the bridge surface material as "gravel,” although it was actually crushed limestone aggregate.

      .Alternatively, Boland would have to show that even if the bridge was properly designed and constructed, some defective condition was in existence on the day she attempted to cross it, and had been that way for such a period of time that the parish must have known about the condition and failed to repair it within a reasonable period of time.

      . For this reason, there is also no possible vicarious liability on the part of the parish. SeeRacca, 872 So.2d 1117, 1122.

      . PEC Project Observation Report Nos. 9 and 10 were unsworn, unverified, and not attached to any affidavit or deposition. Therefore, this court will not consider them.


source: Caselaw Access Project

author:
1 rGAIDRY, j.
      JjKUHN, Judge, [^OWNING, J.,

license: Public Domain

text:
    MOTOROLA, INC. v. ASSOCIATED INDEMNITY CORPORATION, Continental Casualty Company, National Surety Company, Transportation Insurance Company, Zurich American Insurance Company, Harbor Insurance Company, Hartford Accidental & Indemnity Co., Illinois National Insurance Company, National Union Fire Insurance Company, and St. Paul Surplus Lines Insurance Company.
    No. 2002 CA 0716.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Rehearing Denied Aug. 18, 2004.

      S. Gene Fendler, Harold J. Flanagan, New Orleans, J.W. Montgomery, III, Pittsburgh, PA, Counsel for PlaintiffiAp-pellant Motorola, Inc.
    David P. Salley, New Orleans, Philip R. King, Chicago, IL, Counsel for Defendant/Appellee Zurich American Insurance Co.
    Robert A. Vosbein, William J. Kelly, III, New Orleans, Counsel for Defendant/Ap-pellee Continental Casualty Company.
    Michael Durand, Lafayette, Counsel for Defendants/Appellees Associated Indemnity Corporation and National Surety Corporation.
    Edward A. Rodrigue, Jr., New Orleans, Counsel for Defendant/Appellee St. Paul Surplus Lines Insurance Company.
    Eavelyn T. Brooks, New Orleans, Counsel for Defendants/Appellees National Union Fire Insurance Company of Pittsburgh, Pennsylvania and Illinois National Insurance Company.
    Before: CARTER, C.J., KUHN, DOWNING, GAIDRY, and McDONALD, JJ.
   1 rGAIDRY, j.

This is an appeal of a summary judgment rendered in a declaratory judgment action, relating to the issues of an insurance company’s coverage and duty to defend its insured in various class action lawsuits. The trial court denied the motion for summary judgment of the plaintiff-appellant, Motorola, Inc. (Motorola), but granted the motion for summary judgment of the defendant-appellee, Zurich American Insurance Company (Zurich). Motorola appeals the summary judgment dismissing its claims against Zurich. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Motorola is a manufacturer of cellular wireless handheld telephones (“cell phones”). It was named as defendant in a number of class action lawsuits (the “Class Actions”) seeking recovery of sums of money allegedly owed by Motorola and other cell phone manufacturers to alleviate customers’ allegedly harmful exposure to radio frequency radiation. The Class Actions include Naquin v. Nokia Mobile Phones, Inc. (originally filed in Civil District Court for the Parish of Orleans, State of Louisiana); Pinney v. Nokia, Inc. (originally filed in the Circuit Court for Baltimore City, State of Maryland); Farina v. Nokia, Inc. (originally filed in the Court of Common Pleas for Philadelphia County, State of Pennsylvania); Gillian v. Nokia, Inc. (originally filed in the Supreme Court of the State of New York, Bronx County); and Gimpelson v. Nokia, Inc. (originally filed in the Superior Court for Fulton County, State of Georgia). All of the Class Actions were removed to federal court and joined as one multi-district action in the United States District Court for the District of Maryland. On March 5, 2003, the Class Actions were dismissed on the grounds that federal law preempted the causes of action asserted. In re Wireless Telephone Radio Frequency Emissions Products Liability Litigation (RFE Litigation), 248 F.Supp.2d 452 (D.Md.2003). As of this writing, that judgment is on appeal to the United States Court of Appeals for the Fourth Circuit under docket number 03-1433. Despite the different forums in which the Class Actions were instituted and variations in phraseology of their allegations, they are all based upon a common conceptual framework, and share many allegations which are virtually identical.

In addition to the economic restitution for headsets, the Naquin plaintiffs originally claimed “an amount sufficient to pay for the costs of all medical monitoring to protect against and/or monitor for potential development of diseases or illness,” attorney’s fees, and legal interest. In their first supplemental and amended complaint, the Naquin plaintiffs amended their causes of action to exclude the claims for medical monitoring expenses and other “claims for any individualized physical injury.”

Motorola filed this action for declaratory judgment and breach of contract against Zurich and nine other primary and excess liability insurers, seeking a determination that their policies provide coverage for the claims in the Class Actions, that they have the duty to defend Motorola for those claims, and that they are liable for damages to Motorola for their failure to defend it in the Class Actions. Zurich issued two comprehensive general liability (CGL) policies to Motorola, in effect successively from July 1, 1985, to July 1, 1987. In addition to denying liability in its answer, Zurich |Basserted a reconventional demand for declaratory judgment “that it has no obligation to either defend and/or [sic] indemnify Motorola.”

The trial court granted summary judgment in favor of Zurich, and denied Motorola’s motion on the same issues. The summary judgment dismissed Zurich as a party defendant in this declaratory judgment action. From that judgment, Motorola appeals.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Savana v. Certain Interested Underwriters at Lloyd’s London, 01-2450, p. 3 (La.App. 1st Cir.7/2/02), 825 So.2d 1242, 1243.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored in our law. La. C.C.P. art. 966(A)(2). Summary judgment is proper if the pleadings, depositions, answers to interrogatories, admissions, and affidavits on file show that there is 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(B).

The initial burden is on the party moving for summary judgment to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evi-dentiary burden at trial. La. C.C.P. art. 966(C)(2); Simmons v. Berry, 98-0660, p. 4 (La.App. 1st ir.12/22/00), 779 So.2d 910, 914. In deciding a motion for summary judgment, the supporting documents submitted by the parties should be scrutinized equally. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 5 (La.App. 1st Cir.12/29/97), 706 So.2d 525, 528.

Interpretation of an insurance contract is usually a legal question which can be properly resolved in the framework of a motion for summary judgment. Madden v. Bourgeois, 95-2354, p. 3 (La.App. 1st Cir.6/28/96), 676 So.2d 790, 792. However, summary judgment 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 shown by the evidence supporting the motion, under which coverage could be afforded. Gaylord Chemical Corporation v. ProPump, Inc., 98-2367, pp. 3-4 (La.App. 1st Cir.2/18/00), 753 So.2d 349, 352.

PRINCIPLES OF INSURANCE POLICY INTERPRETATION

An insurance policy is a contract between the parties, and should be construed employing the general rules of interpretation of contracts. Blackburn v. National Union Fire Insurance Company of Pittsburgh, 00-2668, pp. 5-6 (La.4/3/01), 784 So.2d 637, 641. Words in an insurance policy must therefore be given their generally prevailing meaning, unless they have acquired a technical meaning, in which case the technical meaning applies. La. C.C. art. 2047; Succession of Fannaly v. Lafayette Insurance Company, 01-1355, p. 3 (La.1/15/02), 805 So.2d 1134, 1137. An insurance policy is construed as a whole, and each provision in the policy must be interpreted in light of the other provisions. Id., 01-1355 at pp. 3-4, 805 So.2d at 1137. If an ambiguity remains after applying the general rules of contractual interpretation, the ambiguous policy provision is construed 17against the insurer who furnished the policy’s text and in favor of the insured. Id., 01-1355, at p. 4, 805 So.2d at 1138.

An insurance policy 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. Magnon v. Collins, 98-2822, p. 7 (La.7/7/99), 739 So.2d 191, 196. Likewise, a court should not strain to find ambiguity in a policy where none exists. Gaylord Chemical Corporation, 98-2367 at p. 4, 753 So.2d at 352. These principles of interpretation are generally accepted and followed in all jurisdictions of this country.

ANALYSIS

The only issue properly before us is whether the trial court was correct in concluding that their pending claims cannot, as a matter of law, be covered as claims for “damages because of bodily injury.” That is, if the class action plaintiffs have potentially valid causes of action against Motorola, do such causes of action seek relief for “damages because of bodily injury,” triggering Zurich’s duty to defend and indemnify Motorola? In order to resolve this issue, it is necessary to define the phrase “damages because of bodily injury” as used in the policy at issue.

“Damages Because of Bodily Injury”

The precise issues confronting us were previously considered by the U.S. Court of Appeals for the Fourth Circuit in Northern Insurance Company of New York v. Baltimore Business Communications, Inc., 68 Fed.Appx. 414, 2003 WL 21404703 (4th Cir.2003) (unpublished opinion). There, the court was presented with a summary judgment rendered in a declaratory judgment action instituted by an insurer of a defendant in the Pinney action, one of the Class Actions. The insurer sought judgment declaring it had no duty to defend or indemnify the insured on the grounds that the Pinney action was not one seeking “damages because of bodily injury” and that one or more of four “business risk” exclusions were applicable under the plaintiffs’ allegations. The appellate court disagreed with the district court’s conclusion that the complaint’s allegations did not seek such damages and therefore did not fall within the policy coverage. The appellate court noted that under Maryland law, “bodily injuries include those that occur at the minute, cellular' level,” and by alleging that they suffered harm from radiation, the plaintiffs alleged a “bodily injury.” Id. at 419. The court interpreted the allegations as “seeking unspecified compensatory damages flowing from their bodily injuries, i.e., harm suffered from radiation,” and that the defendant could therefore be “potentially liable ... for any and all compensatory damages recoverable.” Id. at 420. Finally, while acknowledging that the plaintiffs did not seek “traditional compensation,” the court concluded that the issue of the insurer’s duty to defend must be resolved in favor of the insured. Id. at 422.

The court’s decision in Northern Insurance is not binding upon us, however. For that reason, as well as the different parties involved and the necessity to resolve the issues as to the other Class Actions, we undertake our own independent analysis of these issues.

|9The class action plaintiffs’ allegations asserting the factual basis of the defendants’ liability clearly sound in tort. The policies at issue provide coverage for tort liability. Regardless of whether tort liability is based upon the venerable theory of “proximate cause” or the “duty-risk” analysis, a common, indispensable element in all tort cases is that of damages. As succinctly stated by one of our leading commentators, “[i]f there is no damage, or injury, there is no tort.” 12 William E. Crawford, Louisiana Civil Law Treatise: Tort Law § 4.7 (2000). In its memorandum opinion dismissing the Class Actions as preempted by federal law, the federal district court characterized the relief sought in each action as “[cjompensatory damages.” RFE Litigation, 248 F.Supp.2d at 458. At the same time, however, that court conceded that “these lawsuits do not involve a traditional claim of compensation for personal injury.” Id. at 462. Despite the nontraditional forms of relief sought, the court concluded that the Class Actions fell within the broad category of “state tort lawsuits.” Id. at 466.

It has been observed that “Louisiana is generous in its conception of damage, the slightest being sufficient to support an action.” 12 William E. Crawford, Louisiana Civil Law Treatise: Tort Law § 3.4 (2000). Damages Irrecoverable may include “future damages not yet suffered but feared and impending” and “fear of future harm.” Id. at § 3.6.

The terms “damages” and “bodily injury” are not defined in Zurich’s policy. “Damage[s]” is generally defined as meaning “compensation in money imposed by law for loss or injury.” Merriam-Webster’s Collegiate Dictionary 291 (10th ed.1993). To the extent that the Class Actions seek to compel Motorola to supply headsets to the class action claimants, they seemingly do not assert claims for “damages” under the foregoing definition. However, to the extent that they seek the “costs of headsets” (Farina and Gillian complaints), “amounts necessary to purchase” headsets (Gillian, Gimpelson and Pinney complaints), “reimbursement” of the costs of headsets already purchased by customers (Gillian, Gimpelson, Naquin, and Pinney complaints), and a “reduction in price sufficient to obtain a headset” (Naquin complaint), the Class Actions clearly seek monetary compensation, albeit of a limited nature. Does such relief constitute “damages,” and if so, does it constitute “damages because of bodily injury?”

Comparing the allegations of the Na-quin plaintiffs’ complaint with the foregoing general definitions, it is obvious that those allegations set forth claims predicated upon ongoing, repetitive injurious exposure to allegedly harmful conditions generated by Motorola’s products already in use, as well as future injurious exposure from its products later sold. Zurich claims that the recovery sought by the class action plaintiffs is therefore purely preventative in nature, and not based upon “bodily injury” which has already occurred. Its argument is seemingly supported by the fact that the class of In claimants for which certification is sought has been defined to include future purchasers of cell phones without headsets, as opposed to only past purchasers of cell phones and cell phone headsets.

Zurich’s policy requires that damages covered under its liability coverage be caused by an “occurrence.” Reading the policy as a whole, as we are obligated to do, it is readily apparent that the policy definition of “occurrence” is helpful in determining the intent of the parties as to the “bodily injury” covered. An “occurrence” is defined as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” (Our emphasis.) Thus, the policy clearly contemplates coverage for bodily injury resulting from “repeated exposure to conditions.” There is no requirement that each incident of exposure result in injury, only that the cumulative or progressive effect of repeated exposure results in “bodily injury.”

We first examine the issue within the framework of our state’s law. The broad ambit of damages recoverable under La. C.C. art. 2315 is illustrated by the case of Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. The Louisiana Supreme Court, for the first time, was called upon to determine whether a factfinder’s failure to award general damages was legal error after a finding of liability and an award of medical expenses. The plaintiffs’ minor son had been prescribed an antidepressant after being diagnosed with post-traumatic stress syndrome caused by a fire at home. | -|2The prescription was incorrectly filled with a higher dosage than prescribed. The plaintiffs sued the pharmacy, alleging that the overdosage caused their son to become combative and violent, necessitating his hospitalization for one day, and affected his academic performance. They sought recovery of general damages, medical expenses, past and future counseling expenses, and loss of consortium. At the conclusion of trial, the jury found that the pharmacy’s fault was the cause of the minor’s “injuries,” but awarded only medical expenses. The courts of appeal, with limited exceptions, had previously seemed to apply a general rule that an award of special damages for personal injury without an award of general damages constituted legal error. The court observed that the exceptions demonstrated that “a jury, in the exercise of its discretion as factfinder, can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain medical costs, yet failed to prove that he endured compensable pain and suffering as the result of defendant’s fault.” Id., 00-0492 at p. 8, 774 So.2d at 76. Analyzing the prior Louisiana jurisprudence and that of other states, the supreme court held that there is no “bright line rule” that an award of special damages without corresponding general damages constitutes legal error. Id., 00-0492 at p. 9, 774 So.2d at 76. Rather, the issue in such a case is actually whether the factfinder made inconsistent awards under the particular facts of the case.

The supreme court in Wainwñght overruled the appellate court and reinstated the jury’s verdict, holding that the jury did not abuse its discretion in failing to award general damages, since “there was ample evidence from which the jury could conclude that [the minor’s] brief overdose and hospitalization resulted in no compensable pain and suffering.” Wainwright, 11S00-0492 at p. 10, 774 So.2d at 77. Summarizing the basis for its decision, the court stated:

Since [the pharmacy] admitted its liability for the overdose, the jury would have been justified in awarding the [plaintiffs] medical expenses incurred in insuring that [the minor] had suffered no adverse effects from the medication. (Our emphasis).

Id., 00-0492 at pp. 10-11, 774 So.2d at 77. The ultimate result was that although there was no manifest injury proven, some “damages” for determining no injury existed were still recoverable under our law.

The following language from Justice Lemmon’s additional assigned reasons in Wainwright is especially pertinent here:

When a tortfeasor causes an occurrence which subjects the tort victim to the reasonable possibility of serious injury, the tortfeasor is liable for the reasonable expenses incurred by the tort victim in consulting appropriate medical personnel and in insuring that the adverse effects of the occurrence will be prevented or minimized. This liability for medical consultation or treatment ensues from the tort even if the tort victim is fortunate enough that serious injury does not actually result. (Our emphasis; footnotes omitted.)

Wainwright v. Fontenot, 00-0492 at p. 1, 774 So.2d at 78 (Lemmon, J., subscribing opinion). The class action plaintiffs’ present claims, even if reduced to recovery of appropriate headsets or their cost, still seem to fit squarely within the framework of the principle articulated above.

The liberal interpretation of the term “bodily injury” for purposes of insurance coverage in Louisiana is further illustrated by those cases which have held that “mental anguish” and “mental injury” may constitute “bodily injury” within the meaning of a liability insurance policy. See Crabtree v. State Farm Insurance Co., 93-0509 (La.2/28/94), 632 So.2d 736, 743-45; Ledbetter v. Concord General Corp., 95-0809, p. 5 (La.1/6/96), 665 So.2d 1166, 1169.

In Bourgeois v. A.P. Green Industries, Inc., 97-3188 (La.7/8/98), 716 So.2d 355 (.Bourgeois I), our supreme court was called upon to determine whether asymptomatic members of a class of workers exposed to asbestos, seeking the costs of periodic medical monitoring, stated a cause of action for “damages” under La. C.C. art. 2315. Reversing the appellate court, the supreme court held that claims for medical monitoring to detect the onset of disease were actionable provided certain criteria were met. In doing so, the court extensively reviewed the jurisprudence of other state and federal courts on claims for medical monitoring, noting that “a majority of state supreme courts ... have authorized recovery for medical monitoring in the absence of physical injury.” Id., 97-3188 at p. 7, 716 So.2d at 359-60.

By Acts 1999, No. 989, the legislature sought to overrule Bourgeois I by amending La. C.C. art. 2315 to expressly exclude “costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease.” Despite language in the act purporting to characterize it as interpretative of the codal article’s original intent and to expressly give the amendment retroactive effect, the supreme court in Bourgeois v. A.P. Green Industries, Inc., 00-1528, p. 12 (La.4/3/01), 783 So.2d 1251, 1261 (Bourgeois II), held that the amendment could not be applied retroactively, as such would violate due process by divesting persons of vested rights.

The original elements of the Naquin plaintiffs’ claims were clearly consistent with similar claims for damages for medical monitoring necessitated by exposure to toxic or harmful agents. Regardless of whether 11sthe element of medical monitoring damages has been eliminated from consideration in the Naquin case, the remaining claims, like those in Bourgeois I, are still predicated upon the existence of a legally protected interest in avoiding physical injury. To that extent, the remaining claims are clearly analogous to claims for medical monitoring, which were recognized as delictual claims under La. C.C. art. 2315 until its 1999 amendment. Despite the Naquin plaintiffs’ voluntary elimination of claims for certain elements of alleged damages, the factual grounds of their cause of action remain the same. We perceive no real theoretical or practical distinction between their original causes of action and their remaining causes of action. Since the interest upon which recovery is predicated is still personal bodily integrity, the Naquin plaintiffs’ claims must be characterized as falling within the broad category of claims for damages because of bodily injury.

We are aware of the supreme court’s holdings in Austin v. Abney Mills, Inc., 01-1598 (La.9/4/02), 824 So.2d 1137, and Bonnette v. Conoco, Inc., 01-2767 (La.1/28/03), 837 So.2d 1219, relating to the analogous issue of damages for long-latency or insidious disease following exposure to asbestos. Regardless of the potential effect of those holdings upon the merits of the Naquin plaintiffs’ claims, we emphasize that we are not confronted with the sufficiency of the plaintiffs’ allegations in meeting the criteria of those cases nor with the merits of the Class Actions. We need only determine the narrower issue of whether there exists any reasonable interpretation of the policy, given the plaintiffs’ allegations and the undisputed material facts, under which coverage could be afforded.

The artful crafting of the class action plaintiffs’ pleadings, presumably motivated to aid in maintaining class action status, has not served to | ^substantially alter the factual allegations upon which the limited relief sought is based. The form of the relief sought in the Class Actions does not change its essential character or purpose, which is that of “damages” in tort or products liability. Although the relief purportedly sought consists of tangible accessories to property of the class action plaintiffs, or the accessories’ monetary value, the class action plaintiffs plainly seek such relief “because of bodily injury.” In that regard, we note that our Civil Code provides that obligations may be extinguished by a “giving in payment,” traditionally called a dation en paiement, whereby an obligor gives a thing to an obligee, who accepts it in full or partial payment of a debt. La. C.C. arts. 2655, 2657. Any type of obligation (including a delictual obligation) may be extinguished by a giving in payment. La. C.C. art. 2655, 1993 Revision Comment (f). The relief sought by the class action plaintiffs is analogous, if not identical, to a partial giving in payment.

As to those claims arising in other states, the issue of whether the “in kind” relief sought by the class action plaintiffs fall within the concept of “damages” is less clear. The relief sought, in the form of provision of headsets, seems to constitute a form of “specific performance,” recognized as an equitable remedy in common-law states. Can such “in kind” relief constitute damages within the meaning of a CGL policy? We find that it can.

At common law, declaratory judgment, specific performance, and injunctive relief are traditionally considered equitable remedies. The Missouri Supreme Court was faced with a similar coverage issue for its determination in Farmland Industries, Inc. v. Republic Insurance Company, 941 S.W.2d 505 (Mo.3/25/97). There, affiliated companies brought a declaratory judgment action against various insurers who issued them CGL |17and excess liability policies. They sought a determination that the insurers were obligated to defend and indemnify them for environmental response costs relating to investigation and remediation required by the Environmental Protection Agency under the Comprehensive Environmental Response Compensation Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601, et seq., and by state agencies under analogous state statutes. The policies contained language similar to that at issue here. The plaintiff insureds filed a motion for partial summary judgment on the issue of whether environmental response costs constituted “damages” under the policies. The defendant insurers filed a cross-motion for summary judgment, advocating the contrary position. The adverse parties agreed that the costs at issue were in the nature of equitable relief. The insurers argued that the term “damages” referred only to “legal damages,” or “payments to third persons when those persons have a legal claim for damages.” Id. at 508. They further argued that the “specific actions ..., such as investigating, planning, and cleaning up pollution” ordered by the government were not “damages” because they were not the “money equivalent for detriment or injuries sustained.” Id. The court disagreed, holding that under Missouri law, the ordinary meaning of “damages” included equitable relief, and that the environmental response costs incurred were “damages” under the policies. Id. at 509.

\ wThe “Business Risk” Exclusions

Zurich further contends that Exclusions (m), (n), and (o) of its policy apply to remove the class action plaintiffs’ claims from the ambit of its policy coverage. Our de novo review of the policy terms leads us to the conclusion that the exclusions at issue do not apply to the plaintiffs’ claims asserted in the Class Actions. Simply stated, these exclusions relate only to loss of use or damage to property, including the cell phones at issue, and thus have no relevance to the “bodily injury” claims at issue. See supra note 4, and accompanying text.

The Insurer’s Duty to Defend

A liability insurer’s duty to defend and the scope of its coverage are separate and distinct issues. Dennis v. Finish Line, Inc., 98-0638 (La.App. 1st Cir.3/11/94), 636 So.2d 944, 946, writ denied, 94-1652 (La.10/7/94), 644 So.2d 636. It is likewise well-recognized that the obligation of a 1 pliability insurer to defend suits against its insured is generally broader than its obligation to provide coverage for damages claims. Steptore v. Masco Construction Company, Inc., 93-2064, p. 8 (La.8/18/94), 643 So.2d 1213, 1218. Thus, even if a plaintiffs claim against an insured probably lacks merit, the insurer must defend its insured, if the claim conceivably falls within its coverage. The language of Zurich’s policy accords with this general rule, as Zurich expressly assumes the “duty to defend any suit against the insured seeking damages on account of bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent.”

The issue of whether a liability insurer has the duty to defend a civil action against its insured is determined by application of the “eight-corners rule,” under which an insurer must look to the “four corners” of the plaintiffs petition and the “four corners” of its policy to determine whether it owes that duty. Vaughn v. Franklin, 00-0291, p. 5 (La.App. 1st Cir.3/28/01), 785 So.2d 79, 84, writ denied, 01-1551 (La.10/5/01), 798 So.2d 969. Under this analysis, the factual allegations of the plaintiffs petition must be liberally interpreted to determine whether they set forth grounds which raise even the possibility of liability under the policy. Id. In other words, the test is not whether the allegations unambiguously assert coverage, but rather whether they do not unambiguously exclude coverage. Vaughn, 00-0291 at p. 6, 785 So.2d at 84. Similarly, even though a plaintiffs petition may allege numerous claims for which coverage is excluded under an insurer’s policy, a duty to defend may nonetheless exist if there is at least a single allegation in the petition under which coverage is not unambiguously excluded. Employees Insurance Representatives, Inc. v. Employers Reinsurance Corporation, 94-0676, p. 3 (La.App. 1st Cir. 3/3/95), 653 So.2d 27, 29, writ denied, 95-1334 (La.9/1/95), 658 So.2d 1268.

An insurer should not be allowed to escape its responsibility to defend on a mere technicality based on the type of relief prayed for by a plaintiff, where the insured can be held liable for other damages under the petition. Thomas v. Appalachian Insurance Company, 335 So.2d 789, 792 (La.App. 1st Cir.1976). This is precisely the result warranted under the present facts. In Thomas, the plaintiff sued a Louisiana state trooper in federal court, claiming to have sustained personal injury through the exercise of unnecessary force by the trooper in arresting him. For some reason, the plaintiff sought only punitive damages and medical expenses. The general liability insurer for the state police sought declaratory judgment in state court, contending it had no duty to defend the trooper since its policy excluded coverage for punitive damages. This court rejected the insurer’s contention, observing that the federal district court was authorized under its procedural rules to grant any relief to which the plaintiff was entitled, even if not demanded. In doing so, we further affirmed the longstanding rule that an insurer’s obligation to defend its insured is broader than its obligation to indemnify. Id.

The instant case presents an even stronger case than Thomas for the determination that the insurer owes its insured a duty of defense. Contrary to Zurich’s contentions, the limited relief sought by plaintiffs is not solely determinative of the scope of either Zurich’s coverage or its duty to defend. Given the expansive nature of insurers’ duty to defend, the only reasonable |21 conclusion is that the Class Actions present claims for “damages on account of such bodily injury,” and that Zurich owes Motorola the obligation of defending it in the Class Actions. We conclude, as did the court in Northern Insurance, that “[w]hile [plaintiffs’] claims may lack merit, we are unable to state with certainty that they do not seek ‘damages because of bodily injury.’ ” Northern Insurance, 68 Fed.Appx. at 421-22. Accordingly, the judgment of the trial court on the issue of Zurich’s duty to defend Motorola must also be reversed.

CONCLUSION

The state of the law nationwide as to the validity and parameters of insidious injury and disease claims such as those asserted in the Class Actions is in flux. We cannot say, as a matter of law, that the relief sought by the class action plaintiffs falls outside the broad scope of “damages because of bodily injury.” Thus, we conclude that Zurich’s policy imposes the duty to defend Motorola under the factual allegations of the Class Actions. The resolution of the issue of Zurich’s duty to indemnify Motorola will necessarily depend on the disposition of the merits of the Class Actions.

DECREE

The judgment of the trial court is reversed, and the case is remanded to the trial court. All costs of this appeal are assessed against the defendant-appellee, Zurich American Insurance Company.

REVERSED AND REMANDED.

KUHN, J., concurs with reasons.

McDONALD, j., dissents.

DOWNING, J., dissents and assigns reasons.

JjKUHN, Judge,

concurring.

I disagree with the majority’s conclusion that the articulation of reasons for designation of a partial judgment (or partial summary judgment) as final for purposes of an immediate appeal by the trial court is not a jurisdictional defect. I also disagree with the majority’s conclusion that the partial summary judgments in favor of insurers Associated Indemnity Company and Hartford Insurance Company, which dismissed the claims of Motorola, Inc. against those insurers under La. C.C.P. art. 1915 A(l) and (3), are immediately appealable without need for certification under article 1915 B for the reasons expressed in my dissent in Motorola Inc. v. Associated Indem. Corp., 2002-0716 (La.App. 1st Cir.4/30/03), 867 So.2d 715, 2003 WL 21000918. But as I am duty bound to adhere to this court’s en banc determinations to the contrary, see Motorola Inc. v. Associated Indem. Corp., 2002-1351 (La.App. 1st Cir.10/22/03), 867 So.2d 723, 2003 WL 22404944,1 note my position separately-

[^OWNING, J.,

dissents and assigns reasons.

If a man purchases a Coke with a deceased cockroach therein, drinks it and becomes ill, then his injury would be covered under a bodily injury policy. However, if he does not drink the Coke then his claim is only for the replacement cost of the Coke and recovery is excluded. This would be a business risk because of a defective product not a “bodily injury” claim, even though there was potential for bodily injury, and recovery would be excluded under the bodily injury policy.

Similarly, you can’t sue Ford in tort for a Pinto gas tank alleging you could be killed if it blows up. That is a product claim, not causing bodily injury, for the gas tank and not covered under this type of policy.

Never have I seen pleadings so intentionally and meticulously crafted to not claim damages because of bodily injury than the pleadings of the class action plaintiffs.

The result of this case will be that a person who has not yet suffered symptoms of carpal tunnel syndrome, but who may have microscopic |2cellular injury and desires to have a pad for the keyboard, may sue in tort for the cost of the pad. The insurer will now have to defend every red-hibition claim where a creative lawyer can allege some potential but asymptomatic injury-

interpreting these policies in this strained and liberal manner will convert every redhibition claim where there is potential for future bodily injury into a covered claim. That is not the purpose of this type of insurance and this opinion will cause havoc in the insurance industry.

I would affirm the trial court that there is no coverage and no duty to defend.

      .The federal district court which dismissed the multi-district action involving the Class Actions expressly concluded that "[t]he relief requested for each of these claims is identical.1' RFE Litigation, 248 F.Supp.2d at 458. Although the Farina and Pinney actions purportedly seek compensatory damages (including but not limited to the costs of headsets) and punitive damages, the classes of claimants are so defined as to exclude persons diagnosed with brain tumors or eye cancer, and purchasers of cell phones provided with headsets at the time of purchase.

      . The defendant insurers provided primary or excess liability coverage at various times over the period of use of the members of the classes of plaintiffs in the Class Actions.

      . This court, sitting en banc, has previously held that the summary judgment in favor of Zurich was a partial final judgment under La. C.C.P. art. 1915(A), appealable without the need for specific designation or "certification" by the trial court. Motorola, Inc. v. Associated Indemnity Corporation (Motorola I), 02-0716, p. 7 (La.App. 1st Cir.4/30/03), 867 So.2d 715, 719.

      . It is readily apparent from a reading of the class action plaintiffs' pleadings that the interests for which they seek remedy are not their property rights as owners of cell phones, but rather their rights to be secure from invasion of bodily integrity. Thus, we need not address any issues relating to "property damage" covered under Zurich's policies, except with regard to the possible applicability of the "business risk” exclusions. Indeed, the parties implicitly concede this point in their briefs.

      . For example, the Naquin plaintiffs have alleged that the class members "are exposed to [radio frequency radiation] which causes physical effects, changes and the risk of long-term injury including the potential for very significant long-term health problems,” and that the radio frequency radiation "creates health risks and adverse effects by causing nerve damage, cellular damage, cellular dysfunction and/or other injury to humans.” They specifically allege that Motorola and other manufacturers engaged in “misrepresentation and conspiracy," that Motorola "knew or should have known” of foreseeable "health risk,” that it failed to warn its customers of such risk, that it "intentionally, negligently and wrongfully” represented its cell phones as safe, that it "grossly misled and misinformed” the public, that it failed to "protect users from health risks, effects, and dangers,” that it "willfully and wantonly attempted to suppress information from its customers,” and that "the failure to include a headset ... constitutes a negligent or intentional misrepresentation ... and/or is a redhibitory vice or defect.” (Our emphasis.) All of these allegations are characteristic of delictual or "mixed” causes of action such as products liability actions. The negligence allegations, in particular, are telling in this regard.

      . Later in its opinion, however, the court stated that "[t]he plaintiffs simply do not seek to compensate personal injury in these suits[,]" but nevertheless seek "compensatory and declaratory relief.” RFE Litigation, 248 F.Supp.2d at 467 (our emphasis).

      . The copy of the policy in the record, attached to the affidavit of Zurich’s counsel, may be incomplete in that the policy defini- ' tions begin at the top of a page with the word "occurrence,” without any preceding heading or title designating a "definitions” section. Additionally, we note that the term, "bodily injury,” appears in boldface in the insuring agreement, as do "occurrence” and other defined terms following it alphabetically. Nevertheless, we are bound to decide this matter based upon the record before us.

      . In Western World Insurance Company, Inc. v. Paradise Pools & Spas, Inc., 93-723 (La. App. 5th Cir.2/23/94), 633 So.2d 790, a liability insurer brought an action for declaratory judgment against its insured, a swimming pool contractor, and the insured's customers who had sued it for breach of contract based upon structural defects in a swimming pool. Although the court found that the policy excluded coverage for contractual liability and defects in workmanship or materials, it agreed that the policy’s definition of occurrence, identical to that involved here, was “ambiguous” and could be construed to mean "the development of cracks in the swimming pool.” Id., 93-723 at p. 6, 633 So.2d at 794.

      . See generally Keith W. Lapeze, Comment, Recovery for Increased Risk of Disease in Louisiana, 58 La.L.Rev. 249 (1997).

      . See also Powell v. Weaver, 01-2937, pp. 4-5 (La.2/7/03), 841 So.2d 742, 744 (Weimer, J„ concurring).

      . Accord, New Castle County v. Hartford Accident and Indemnity Company, 933 F.2d 1162, 1188-90 (3rd Cir.1991) (interpreting Delaware law); Aetna Insurance Company v. Aaron, 112 Md.App. 472, 685 A.2d 858, 864 (12/3/96) (applying Maryland law). Cf. A.Y. McDonald Industries, Inc. v. Insurance Company of North America, 475 N.W.2d 607, 624 (Iowa 1991) ("Costs incurred to pay for preventive measures taken in advance of pollution are not 'damages because of property damage.' But costs for preventive measures taken after such pollution are 'damages because of property damage’ and so are covered.") In the case of Minnesota Mining and Manufacturing Company v. Travelers Indemnity Company, 457 N.W.2d 175, 179 (Minn. 1990), the Minnesota Supreme Court observed that Minnesota law no longer recognizes a substantial distinction between "legal” and "equitable” claims, and held that the term "damages” in a CGL policy did not have a meaning warranting "a distinction between actions seeking purely monetary relief and actions seeking forms of equitable relief.”

      . Exclusion (m) is a typical CGL "business risk” or "failure to perform” exclusion. 15 W. Shelby McKenzie and H. Alston Johnson, III, Louisiana Civil Law Treatise: Insurance Law and Practice § 197 (1996). It provides;
      This policy does not apply: ...

        (m) to loss of use of tangible property which has not been physically injured or destroyed resulting from
      (1) a delay in or lack of performance by or on behalf of the named insured of any contract or agreement, or
      (2) the failure of the named insured’s products or work performed by or on behalf of the named insured to meet the level of performance, quality, fitness or durability warranted or represented by the named insured ...
      Exclusion (n), a typical CGL "damage to products” exclusion, Id. at § 198, provides that the policy does not apply "to property damage to the named insured’s products arising out of such products or any part of such products.”
      Exclusion (o) is a typical CGL "work performed” exclusion, Id., and excludes coverage "to properly damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.” Both Exclusion (n) and Exclusion (o) are also referred to collectively as "work product” exclusions. Id.

      . Our review of the jurisprudence of other jurisdictions convinces us that their courts would likely reach the same result. See, e.g., Minnesota Mining and Manufacturing, 457 N.W.2d at 181: "The utility of the [CGL] policy would be seriously called into question, if coverage is permitted to hinge on such a fortuitous event as whether a plaintiff bringing an action against the insured has framed his complaint in equity rather than in law.”