author: GUIDRY, J.

text:
    Scott LOWE and Beth Lowe v. NOBLE, L.L.C., et al.
    NUMBER 2016 CA 1110
    Court of Appeal of Louisiana, First Circuit.
    OCTOBER 17, 2017

      Steve Joffrion, Garrett Joffrion, John Kitto, Prairieville, LA and Bradford H. Walker, Metairie, LA, Counsel for Plaintiffs/Appellants Scott Lowe & Beth Lowe
    Rodney J. Lacoste, Jr., Kristie L. Mou-ney, New Orleans, LA, Counsel for Defendants/Appellees Noble, L.L.C., Roy E. Poole, and Companion Property and Casualty Ins. Co.
    Kris P. Kiefer, Metairie, LA, Counsel for Defendants/Appellees James Pitts and Allstate Ins. Co.
    Andrew T. Lilly, New Orleans, LA, Counsel for Defendant/Appellee High Performance Solutions, LLC
    William C. Rowe, Jr., Joseph S. Manning, Baton Rouge, LA, Counsel for Defendant/Appellee Tony Crawley
    Thomas J. Eppling, Julie Steed Hammer, Metairie, LA, Counsel for Defendants/Appellees Ernest Wilkes, Saia Motor Freight Line, LLC, and Travelers Indemnity Co. of Connecticut
    Christopher J. Kane, New Orleans, LA, Counsel for Defendants/Appellees Robert Arrington, YRC, Inc. and Old Republic Ins. Co.
    G. Bruce Parkerson, Jessica A. Savoie, New Orleans, LA, Counsel for Defendants/Appellees Tommy Lee Marshall and Max Trans, LLC
    Anne E. Briard, New Orleans, LA, Counsel for Defendant/Appellee Star Insurance Co.
    Robert A. Mahtook, Jr., Amy J. Goode, Lafayette, LA, Counsel for Defendants/Appellees Little Pine Island Corp., Little Pine Island, LP, and John J. Cummings, III
    H. Minor Pipes, III, Kimberly Silas, New Orleans, LA, Counsel for Defendant/Appellee American First Ins. Co.
    BEFORE: WHIPPLE, C.J., GUIDRY, AND CHUTZ, JJ.
   GUIDRY, J.

|aIn this case arising out of a multi-vehicle accident, plaintiffs, Scott Lowe and Beth Lowe, appeal from a judgment of the trial court granting summary judgment in favor of defendants, Little Pine Island Corporation, Little Pine Island, LP, and John J. Cummings, III, dismissing plaintiffs’ claims with prejudice. For the reasons that follow, we affirm in part, reverse in part and remand.

FACTS AND PROCEDURAL HISTORY

Oak Island, consisting of 1,482.60 acres of marshland south of Interstate 10 in New Orleans between the Bayou Sauvage National Wildlife Refuge and Interstate 510, is owned by Little Pine Island Partnership. The general partner of Little Pine Island Partnership is Little Pine Island Corporation, whose sole shareholder is John J. Cummings, III.

On August 24, 2011, Peter Babin IV, an employee of Cummings, observed smoke on Oak Island. Babin called Cummings to report smoke on the property and thereafter contacted the New Orleans Fire Department (NOFD). NOFD responded to the call and determined that there was a marsh fire on the south side of Interstate 10. NOFD investigated the fire but was unable to access it. At that time, NOFD reported that the cause of ignition was “undetermined.”

NOFD returned to Oak Island on August 26, 2011, and determined that the area where the smoke was coming from was not accessible. Helicopter water drops over the affected area by the Louisiana Army National Guard began on August 30, 2011, and a command post was set up at Bayou Sauvage. Command post operations ceased between September 1, 2011, and September 4, 2011, due to Tropical Storm Lee affecting the area.

On September 5, 2011, NOFD entered the area affected by the marsh fire by boat and determined that accessibility was almost impossible, that it was almost impossible to get heavy equipment in the area due to the soft ground, and that the Uarea was very dangerous for NOFD personnel to work in. NOFD continued to monitor the area, and when flames were detected by air on September 10, 2011, more helicopter water drops were conducted. Over the next few months, NOFD continued to monitor the area daily for fire and smoke.

Thereafter, before daybreak on December 29, 2011, Scott Lowe was a guest passenger- in a vehicle driven by David Porter, traveling westbound on Interstate 10 in New Orleans in the vicinity of Oak Island. Porter encountered a dense cloud of fog and/or smoke, resulting in zero visibility conditions. Although Porter began braking his vehicle, he nonetheless rear-ended the vehicle in front of him owned by Max Trans, LLC and operated by Tommy Lee Marshall, which was obstructing one or more lanes of travel. The Marshall truck apparently had also encountered the cloud of fog and/or smoke and had rear-ended another vehicle, which was also obstructing one or more lapes of travel on Interstate 10. Immediately after the collision between the Porter vehicle and the Marshall vehicle, the Porter vehicle was struck from the side and/or from behind by two additional vehicles.

On December 20, 2012, Lowe and his wife, Beth Lowe, filed a petition for damages, naming Little Pine Island Corporation, Little Pine Island LP, and John J. Cummings, III (collectively “Little Pine”) as defendants, asserting that the cloud of smoke, which either independently or in combination with fog caused the sudden and immediate reduction of visibility on Interstate 10, originated from the marsh fire on Oak Island, which was allowed by Little Pine to burn for many months prior to the accident. Accordingly, plaintiffs alleged that Little Pine was negligent in: allowing an unquenched marsh fire to continue to burn and obstruct visibility along a heavily traveled interstate highway; failing to bring the fire under control over many months; failing to exercise due care under the situation; acting |Bin a careless manner without due regard for the safety of others, including motorists on Interstate 10 near the fire; and in failing to warn of an unreasonably dangerous condition, ere-ated in whole or in'part by Little Pine. Particularly as to Cummings, the plaintiffs alleged that as the manager of Little Pine, he was negligent in failing to take action and/or direct employees to remedy the unreasonably dangerous condition posed by the marsh fire that was allowed to burn over many months when he had actual or constructive knowledge of said condition.

Little Pine answered the petition, raising multiple defenses. Particularly, Little Pine asserted that the reduced visibility caused by fog on the morning of the accident was an Act of God for which Little Pine could not be liable and that the cause of the fire on Oak Island was a lightning strike, which also was an Act of God for which Little Pine could not be liable.

Thereafter, Little Pine filed a motion for summary judgment on August 17, 2015, asserting that there was no genuine issue of material fact as to whether Little Pine was liable for an unavoidable Act of God/ force majeure, was liable as a landowner for damage caused by the marsh fire, or owed a duty to plaintiffs related to the extinguishment and/or • control of the marsh fire. In connection with Little Pine’s motion for summary judgment, Little Pine attached 24 exhibits.

Plaintiffs opposed Little Pine’s motion for summary judgment, asserting that various exhibits offered by Little Pine in support of the motion were not competent summary judgment evidence under La. C.C.P. art. 967 and moved to strike Little Pine’s Exhibit F, and - Exhibits J-P. Additionally, plaintiffs asserted that Little Pine bore the burden on the motion for summary judgment to establish Act of God as • an affirmative defense and that Little Pine did not provide evidence that the accident |fiwas directly and exclusively due to natural causes without human intervention and that no negligent behavior by Little Pine contributed to the accident. Particularly, plaintiffs asserted that Little Pine failed to provide evidence that the fire was caused by lightning and asserted that Little Pine contributed to the accident by failing to provide NOFD with access to Oak Island to extinguish the fire and failing to maintain the marshland by using controlled burns. In support thereof, plaintiffs submitted several exhibits, including an affidavit from.Michael Henry, an expert in the field of wetlands management.

At the hearing on Little Pirie’s'motion for summary judgment, the trial court heard arguments with regard to plaintiffs’ motion to strike, wherein plaintiffs also alleged that Little Pine Exhibits G, H, I, Q, and S were not competent evidence on a motion for summary judgment.. Following argument of counsel on the motion to strike, the trial court denied .plaintiffs’ motion, The trial court thereafter heard argument from counsel on the motion for summary judgment and took the matter under advisement. The trial court subsequently issued written reasons for judgment, finding no affirmative duty oh Little Pine-to conduct controlled burns; that Cummings was statutorily required to follow the instructions of NOFD, who noted repeatedly that the best course was to let the fire burn out; that the cause of the fire was irrelevant, because there was no evidence anyone with Little Pine started the fire, thus Little Pine’s only duty was to call NOFD; and while some smoke may have been a factor, fog and/or smoke caused an unexpected zero visibility event rising to the level of being an Act of God. On December 30, 2015, the trial court signed a judgment granting summary judgment in favor of Little Pine and dismissing plaintiffs’ claims against them with prejudice..

The plaintiffs now appeal from the trial court’s judgment.

STANDARD OF REVIEW

17A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Cooperative, Inc., 01-2956, p. 3 (La. App. 1st Cir. 12/30/02), 836 So.2d 484, 486. A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). Only evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion. La. C.C.P. aft. 966(F)(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La. App. 1st Cir. 12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La. 6/15/07), 958 So.2d 1199.

' On a. motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover 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. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to’satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, |sthere is no genuine issue- of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2).

DISCUSSION

Motion to Strike .

Evidence cited in and attached to a motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection raised in a memorandum or written motion to strike stating the specific grounds therefor. La. C.C. P. art. 966(F)(2) and (3).

In the instant case, plaintiffs objected to certain enumerated exhibits submitted by Little Pine in support of its motion for summary judgment. Plaintiffs alleged that these exhibits were unsworn, unverified, and uncertified, and that Little Pine’s attempt to rectify the competency of these exhibits with an affidavit was likewise insufficient, as the affidavit did not specifically reference the exhibits at issue, nor were any exhibits attached to the affidavit.

As noted previously, La. C.C.P. art. 966(B)(2) describes what a court may consider in its determination of a summary judgment motion, namely “pleadings, .depositions, answers to interrogatories, and admissions, together with the affidavits, if any[.]” Further, La. C.C.P. art. 967(A) describes the type of documentation a party may submit in support of or in opposition to a motion for summary judgment. Boland v. West Feliciana Parish Police Jury, 03-1297, p. 5 (La. App. 1st Cir. 6/25/04), 878 So.2d 808, 813, writ denied, 04-2286 (La. 24/04), 888 So.2d 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 affiant 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. Boland, 03-1297 at p. 5, 878 So.2d at 813.

Louisiana Code of Civil Procedure articles 966 and 967 do not permit a party to utilize unsworn and unverified documents as summary judgment evidence. Nettle v. Nettle, 15-1875, 15-1876, p. 4 (La. App. 1st Cir. 9/16/16), 212 So.3d 1180, 1183, writ denied, 16-1846 (La. 12/16/16), 212 So.3d 1170. 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 to be considered on a motion for summary judgment. Unifund CCR Partners v. Perkins, 12-1851, p. 8 (La. App. 1st Cir. 9/25/13), 134 So.3d 626, 632. Therefore, in meeting the burden of proof, unsworn or unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform such documents into competent summary judgment evidence. Bunge North America, Inc. v. Board of Commerce & Industry, 07-1746, p. 24 (La. App. 1st Cir. 5/2/08), 991 So.2d 511, 527, writ denied, 08-1594 (La. 11/21/08), 996 So.2d 1106.

In the instant case, plaintiffs objected to Little Pine’s Exhibits F, G, H, I, J, L-P, Q, and S. Plaintiffs asserted that Exhibits G, H, I, J, and L-P are unsworn, | ^unverified, and uncertified and therefore, are inadmissible in support of Little Pine’s motion for summary judgment. From our review of the record, we agree. These exhibits consist of a City of New Orleans Calendar of Events, excerpts from a NOFD presentation, NOFD situation reports, press releases, a summary of City of New Orleans conference calls, NOFD incident action plan excerpts, a NOFD time-line, NOFD email correspondence excerpts, and a New Orleans marsh fire meeting summary. None of these documents, however, are sworn to or verified. As such, they are not competent evidence on a motion for summary judgment. See Bunge, 07-1746 at p. 24, 991 So.2d at 527.

Furthermore, while Little Pine asserts that these exhibits were produced by the City of New Orleans pursuant to a La. C.C.P. art. 1442 deposition, and therefore are authenticated and competent summary judgment evidence, Little Pine failed to submit a copy of said deposition, wherein these particular exhibits are identified and verified, in connection with its motion for summary judgment. See Boland, 03-1297 at p. 7, 878 So.2d at 814. •

Additionally, Exhibit F, which is an affidavit from Robert Eiserloh, Deputy Superintendent of Operations with NOFD, likewise does not certify these exhibits or otherwise render them competent summary judgment evidence. In his affidavit, Eiserloh states that as the Deputy Superintendent of Operations, he has “authority to certify the subject records.” (Emphasis added.) Eiserloh further states that “[t]he records produced by NOFD pursuant to the Article 1442 Deposition of the City of New Orleans and the New Orleans Police Department and the Continued Article 1442 Deposition of the City of New Orleans and the New Orleans Police Department are true, copies of original records maintained by NOFD that were requested ... in the above-captioned matter.” Eiser-loh finally states that the “subject records were kept in the course of the regularly conducted activity of NOFD and were prepared as a regular practice and custom.” (Emphasis added.) In However, the affidavit does not name or otherwise identify the “subject records,” nor does it specify that the “subject records” are attached to the affidavit. Because the vague wording of Eiserloh’s affidavit does not identify or otherwise verify the exhibits at issue, nor indicate that the exhibits at issue are attached to the affidavit, we find that the affidavit does not satisfy the requirements of La. C.C.P. art. 967(A), and itself, is not competent summary judgment evidence. See Capital One Bank (USA), NA v. Sanches, 13-0003, pp. 9-10 (La. App. 4th Cir. 6/12/13), 119 So.3d 870, 875; see also Unifund CCR Partners, 12-1851 at p. 7, 134 So.3d at 631-632.

With regard to Exhibit S, which is a New Orleans Police Department (NOPD) crash report excerpt, we note that a police report, which is not authenticated or sworn to in any way, is not competent summary judgment evidence. See Lewis v. Jabbar, 08-1051, p. 6 (La. App. 1st Cir. 1/12/09), 5 So.3d 250, 255 and Drury v. Allstate Insurance Company, 11-509, p. 8 (La. App. 5th Cir. 12/28/11), 86 So.3d 634, 638. In this case, Little Pine failed to provide an affidavit or deposition testimony of the police officer who authored the report or other witnesses in support of its motion for summary judgment. See Drury, 11-509 at p. 8, 86 So.3d at 638. As such, the crash report is not competent summary judgment evidence.

Finally, plaintiffs contend that an incident recall excerpt attached to Exhibit Q, which is the deposition of Edgar Edwards with NOPD, is unsworn, unverified, and uncertified and therefore is inadmissible in support of Little Pine’s motion for summary judgment. However, the incident recall excerpt is identified by Edwards in his deposition as “normal New Orleans police report type findings,” and it is attached to his deposition. Accordingly, because the incident recall excerpt is attached to Edwards’ deposition, wherein it is identified and verified, it may 112properly be considered on summary judgment. See Hughes v. Home Depot U.S.A., Inc., 15-0970, p. 5 (La. App. 1st Cir. 12/23/15), 2015 WL 9466870 (unpublished opinion).

• Becausé we find from our review of the record that Exhibits F, G, H, I, J, L-P, and S are not competent summary judgment evidence, the trial court abused its discretion in denying plaintiffs’ motion to strike these exhibits. Accordingly, finding the trial court erred, we grant plaintiffs’ motion to strike these exhibits, and they will not be considered in our' de novo review of the record on appeal.

Liability of Little Pine

With regard to plaintiffs’ allegations that Little Pine is liable for failing to extinguish and/or control the marsh fire and failing to warn motorists of .its existence, Little Pine asserts that there is no genuine issue of material fact as to whether any duty, breach or substandard conduct by Little Pine exists as a proximate cause of the accident or plaintiffs’ alleged damages. Little Pine also asserts that no genuine issue of material fact exists as to whether any conduct by Little Pine or condition of its property caused the fire or its continued burn. Furthermore, Little Pine asserts that the only possible causes of plaintiffs’ damages were unexpected forces of nature beyond the control and duty of Little Pine as a landowner.

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of La. C.C. art. 2315. For liability to attach under a duty-risk analysis, a-plaintiff must prove five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); ■ (2) whether the defendant’s conduct failed to conform to ■ the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-faet element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) whether the plaintiff |1swas damaged (the damages element). Cusimano v. Wal-Mart Stores, Inc., 04-0248, pp. 3-4 (La. App. 1st Cir. 2/11/05), 906 So.2d 484, 486-487. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Cusimano, 04-0248 at p. 4, 906 So.2d at 487.

With regard to plaintiffs’ claims that Little Pine was negligent for allowing the marsh fire to continue to burn and obstruct visibility on 1-10 and failing to bring the fire under control, Little Pine asserts that plaintiffs are- unable to meet their burden of establishing that after Little Pine notified NQFD of the marsh fire, it owed any further duty to extinguish and/or control the fire.

Whether a legal duty exists, and the extent of that duty, depends on the facts' and circumstances of the case, and the relationship of the parties. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 02-1376, p. 6 (La. App. 1st Cir. 5/9/03), 849 So.2d 622, 627, writ denied, 03-1579 (La. 10/3/03), 855 So.2d 315. Whether a duty is owed is a question of law. Rando v. Anco Insulations, Inc., 08-1163, 08-1169, p. 27 (La. 5/22/09), 16 So.3d 1065, 1086. Simply put, the inquiry is whether the plaintiff has any law—statutory, jurisprudential, or arising from general principles of fault—to support his claim. Bowman, 02-1376 at p. 6, 849 So.2d at 627.

Louisiana Revised Statute 33:1971, pertaining to fire ground authority, provides, in pertinent part:

A. (1) When a situation, develops which requires the services of and is responded to by the members of a fire department subject to this Subpart as provided in R.S. 33:1961, ... then the ranking fire protection or fire prevention officer from that jurisdiction dispatched to the scene shall have the sole authority, command, and control of all fire safety personnel and of all persons within the boundaries as described in Subsection B of this Section.... This authority, command, and control shall be known as the fire ground authority.
* * *
B. The boundaries of such fire ground authority, command, and control shall extend to the perimeters of the zone of danger, which zone shall be determined by the ranking fire' protection or fire | uprevention officer and the chief law enforcement officer at the scene from that jurisdiction.
C. Defiance or violation of this authority, command, and control shall constitute fire fighting interference and shall be punishable in conformance with R.S. 14:206.

Accordingly, once a fire has been reported to the fire department and d fire protection or fire prevention officer responds to the scene, that officer has sole authority of all fire safety personnel and all persons within the zone of danger and the only further duty imposed upon a landowner is to not interfere with said authority.

In the instant case, Little Pine presented the deposition testimony of Chief Timothy A..McConnell, who was the assistant superintendent in charge of operations for the members of NOFD who responded to the marsh fire, Chief McConnell stated that once NOFD was notified about the fire, an incident report was generated and NOFD sent fire engines out to the address. Chief McConnell stated that once on site, NOFD established fire ground authority. As such, NOFD was in charge of extinguishment of the -fire, - in coordination with other agencies. According to Chief McConnell, NOFD did not initially have physical access to the location of the fire. However, -this lack of access, according to Chief McConnell, was due to the fact that the fire was located on marsh land, which was made up of soft ground, and which posed a danger to NOFD personnel due to the presence of rattlesnakes, wild hogs, and alligators.- As such, NOFD initially responded in late August by using “Bambi buckets,” where water is dropped from the air. Then, in early September 2011, Tropical Storm Lee dropped over 10 inches of rain on the area. Thereafter, NOFD - monitored the fire and its interface with urban areas and made the decision that the fire was fairly under control. Then as the seasons changed, the fire moved underground and NOFD took different action with the full co-operation of Little Pine. Chief McConnell specifically stated that Cummings | ^provided whatever assistance NOFD requested, including cutting roads and building bridges to provide NOFD access to -the property, and that nothing Cummings did impeded NOFD.

Plaintiffs, however, have failed to present any evidence to establish that- Little Pine owed a duty with respect to extin-guishment of the fire beyond notifying NOFD of-the fire and, once fire ground authority was established, not interfering with said authority. In opposing Little Pine’s ■ motion- for summary judgment, plaintiffs assert that Little Pine interfered with NOFD fire- ground authority by .failing to provide access to the-property until after the subject accident in December 2011. However, we find no evidence in the record to support this claim. Plaintiffs rely on excerpts of Chief McConnell’s testimony to infer that the reason access was not obtained until after the December 2011 accident was due to the lack of cooperation from Little Pine. However, a reading of Chief McConnell’s testimony, in its entirety as detailed above, clearly indicates that access was not requested by NOFD until after the December 2011 accident, and such decision was based on the strategy followed by NOFD in dealing with the fire. As this was the only evidence relied on by plaintiffs in support of their argument on this claim, plaintiffs failed to establish that Little Pine owed a duty to extinguish and control the fire beyond notifying NOFD of the fire and cooperating with NOFD in its extinguishment efforts, or that Little Pine breached any duty to cooperate with NOFD by refusing NOFD access to the property.

In seeking summary judgment, Little Pine also asserts that plaintiffs are unable to meet their burden of establishing that any conduct by Little Pine or condition of its property caused the fire or its continued burn. Specifically, Little Pine asserts that plaintiffs are unable to establish any defect on Little Pine’s property, that Little Pine knew or should have known of a defect, or that any defect caused damages to plaintiffs.

11fiThe owner or person having custody of immovable property has a duty to keep such property in a reasonably safe condition. He must discover any unreasonably dangerous condition on its premises and either correct the condition or warn potential victims of its existence. The basis for such delictual liability is established in La. C.C. arts. 2315, 2316, 2317 and 2317.1. Leonard v. Ryan’s Family Steak Houses, Inc., 05-0775, p. 3 (La. App. 1st Cir. 6/21/06), 939 So.2d 401, 404. In particular, La. C.C. art. 2317.1 provides, in pertinent part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Thus, in order to establish liability based on ownership or custody of a thing, the plaintiff must show that: (1) the defendant was the owner or custodian of a thing which caused the damage; (2) the thing had a ruin, vice, or defect that created an unreasonable risk of harm; (3) the ruin, vice, or defect of the thing caused the damage; (4) the defendant knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect; (5) the damage could have been prevented by the exercise of reasonable care; and (6) the defendant failed to exercise such reasonable care. Leonard, 05-0775 at p. 3, 939 So.2d at 404^405.

In the instant case, Little Pine asserts that based on the jurisprudence, the marsh fire itself was not a “quality” of the property to qualify under the legal definition of a defect. See Toussant v. Guice, 414 So.2d 850, 852 (La. App. 4th Cir. 1982). Furthermore, Little Pine asserts that the undisputed testimony and evidence demonstrates that the only possible cause of the fire and its continued burn was lightning and the natural rural properties of the marshland.

In opposing Little Pine’s motion, plaintiffs assert that the defect in the property is not the fire, but it is the accumulation of scrub shrub fuel. Whether the |17property had a condition that created an unreasonable risk of harm is a mixed question of fact and law, which must be determined in light of the facts and circumstances of each particular case. See Broussard v. State ex rel. Office of State Buildings, 12-1238, p. 9 (La. 4/5/13), 113 So.3d 175, 183; see also Waddell v. American Empire Surplus Lines Insurance Company, 13-1695, p. 3 (La. App. 1st Cir. 6/25/14), 2014 WL 3611830 (unpublished opinion).

In connection with their opposition, plaintiffs submitted the affidavit and report of Michael Henry, a wetlands expert. Henry stated that he reviewed the evidence submitted in connection with Little Pine’s motion for summary judgment, in addition to photographs provided by satellite studies and the deposition testimony of Babin and Cummings. Based on his review of the foregoing, Henry determined that Oak Island was primarily composed of “scrub shrub,” which is a wetland dominated by shrubs, emergents, and other woody plants and small trees. According to Henry, in areas of scrub shrub wetlands where marsh fire and/or smoke could reasonably cause danger to homes and/or highways in close proximity thereto, a quantity of fuel generated by the life cycles of the scrub shrub plants can and should be controlled by burning to prevent excess accumulation. This practice is known as “periodic controlled burning.”

According to Henry, it is obvious that no wetland management or controlled burning of the major portion of the 2,800 acre wetland was conducted for at least fifty years, if not substantially longer. Henry stated that if an unusual amount of organic peat and/or woody or vegetative material is allowed to accumulate on otherwise healthy marsh, a lightning strike or spontaneous combustion can cause a “hot fire,” which can often go subterranean and which will not burn out on its own or with an accompanying rain storm. Henry stated that in such cases, as was the case here, the marsh fire can go on for months. Further, Henry stated that a marsh fire that ignites woody scrub shrub and accumulated woody byproduct tends to |1Rburn much longer than a fire in a peat covered marsh, and the woody byproduct and scrub shrub will often continue to smolder, generating thicker smoke and possibly causing re-ignition of the fire. According to Henry, regular controlled burns every one to five years prevent the dangerous accumulation of fuel buildup by organic peat or woody byproduct accumulation. Henry further stated that periodic controlled burns are especially critical in areas where the uncontrolled burn could be hazardous to the public either by the uncontrolled spread of the fire or by the dense smoke generated by the resulting woody byproduct burn.

Accordingly, from our review of the record, we find that plaintiffs presented evidence sufficient to create a genuine issue of material fact regarding the existence of a defect in the property and whether Little Pine had,constructive knowledge of such a defect. See Charan v. Bowman, 06-0882, p. 10 (La. App. 1st Cir. 8/1/07), 965 So.2d 466, 473, writ denied, 07-1773 (La. 11/9/07), 967 So.2d 505.

Additionally, with regard to whether the defect caused the damage, Henry testified that if an unusual amount of organic peat and/or woody material is allowed to accumulate on t]ie property and a resulting fire occurs, these conditions can cause a “hot fire,” which will not bum out on its own and can go on for months, which, according to Henry, is what occurred in the instant case, and that such a fire can generate thicker smoke. Ernest Wilkes, a driver who was involved in the accident at issue on Interstate 10 and whose deposition plaintiffs submitted in connection with their opposition, stated that he knew about the fire in the area and saw and smelled smoke at the accident scene both prior to and on the date of the accident. Wilkes further stated that the smoke, combined with fog present at the scene on the morning of the accident, created a “total whiteout,”-and he could not see anything. Accordingly, based on the foregoing, plaintiffs presented evidence creating a genuine issue of material fact as to whether the defective 11flcondition of the property caused and/or contributed to the zero visibility conditions that led to the accident at issue.

Finally, plaintiffs assert that the four-month long fire could have been prevented if Little Pine had performed periodic controlled burns, which plaintiffs argue is an exercise in reasonable care. As noted above, Henry stated that periodic controlled bums once every one to five years are regularly used by marsh land managers to control abnormal fuel buildup. See also La. R.S. 3:17 (providing that prescribed burning reduces naturally produced on-site vegetative fuels within wild land areas). Henry further opined that in areas of scrub shrub wetlands where a .marsh fire and/or smoke could reasonably cause- danger to homes and/or highways in close proximity thereto, a quantity of woody fuel generated by. the life cycle of the scrub shrub plants can and should be controlled by periodic controlled burning to prevent excess accumulation. According to Henry, periodic controlled burns are especially critical in areas where an uncontrolled burn could be hazardous to the public either by the uncontrolled spread of the fire or by the dense smoke generated by the resulting woody product burn. Furthermore, Henry stated that the risk of “hot fire” would have been very substantially reduced, if not eliminated, by proper management of the marsh. Henry specifically noted that reasonable maintenance and management of the site would have allowed the 2011 fire to be' less intense, easier to • control, and easier to have been extinguished by accompanying rain showers, particularly the considerable amount of rain that fell on the site during Tropical Storm Lee.

| ^Therefore, from our review of the record, plaintiffs presented evidence that under the facts and circumstances of this case, performing periodic- controlled burns is an exercise in reasonable care and had Little Pine performed said burns, the marsh fire would have been less intense, eásier to control, and would have been extinguished by accompanying rain showers and by the amount of rain falling on the area during Tropical Storm Lee in September 2011. As such, based on the foregoing, a genuine issue of material fact exists precluding summary judgment as to Little Pine’s negligence under La. C.C. art. 2317.1.

Once a plaintiff has proven the elements necessary to recover for damage under La. C.C. art. 2317.1, the owner can avoid liability if it shows that the harm was caused by an Act of God. See Brown v. Williams, 36,863, p. 8 (La. App. 2nd Cir. 7/31/03), 850 So.2d 1116, 1123, writ denied, 03-2445 (La. 11/21/03), 860 So.2d 565. An Act of God, or force majeure, is an unusual, sudden and unexpected manifestation of the forces of nature, which man cannot resist. An injury caused by an Act’of God is one which is due directly and exclusively to natural causes that could not have been prevented by the exercise of reasonable care. Rector v. Hartford Accident & Indemnity Company of Hartford, Connecticut, 120 So.2d 511, 515 (La. App. 1st Cir. 1960). Accordingly, the Act of God defense is only available to a defendant who is free from negligence and who shows that the accident is the direct and exclusive result of natural causes that could not be prevented by the exercise of reasonable care. Wells v. Town of Delhi, 51,222, p. 8 (La. App. 2nd Cir. 4/5/17), 216 So.3d 1095, 1101.

Little Pine asserts in its motion for summary judgment that the accident at issue was caused solely by unforeseeable and unprecedented weather conditions. However, because we find that that there exists disputed issues of material fact concerning whether Little Pine was negligent under La, C.C. art. 2317.1, and therefore, whether Little Pine’s negligence contributed to the continued burn of the |¾1 marsh fire and the accident at issue, a genuine issue of material fact likewise exists as to whether the accident at issue was caused solely by unforeseeable and unprecedented weather conditions.

CONCLUSION

For the foregoing reasons, we grant plaintiffs’ motion to strike as to Exhibits F, G, H, I, J, L-P, and S submitted in connection with Little Pine’s motion for summary judgment. Furthermore, we affirm that portion of the trial court’s December 30, 2015 judgment granting summary judgment as to plaintiffs’ claims that Little Pine was negligent for allowing the marsh fire to continue to burn and obstruct visibility on Interstate 10 and failing to bring the fire under control. However, we reverse that portion of the trial court’s December 30, 2015 judgment - granting summary judgment as to plaintiffs’ claim under La. C.C. art. 2317.1 and remand this matter to the trial court for further proceedings. All costs of this appeal are to be borne equally by the plaintiffs, Scott Lowe and Beth Lowe, and the defendants, Little Pine Island Corporation, Little Pine Island, LP, and John J. Cummings, III.

MOTION TO STRIKE GRANTED IN PART; DECEMBER 30, 2015 JUDGMENT GRANTING MOTION FOR SUMMARY JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND Remanded.

      . Although plaintiffs’ original petition named twenty-two defendants, we address only their claims against the Little Pine defendants herein.

      . Little Pine had previously filed a motion for summary judgment on December 10, 2014, which the trial court denied as premature.

      . Louisiana Code of Civil Procedure article 966 was amended and reenacted by La. Acts 2015, No. 422, § 1, with an effective .date of January 1, 2016. The amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article ás applicable in this case. See Acts 2015, No. 422, §§ 2 and 3.

      . In the instant case, the record contains evidence that plaintiffs objected to Exhibit F and, in conjunction therewith, Exhibits J-P in their memorandum in opposition to Little Pine's motion for summary judgment. The plaintiffs further objected to Exhibits G, H, I, Q, and S at the hearing on their motion to strike and Little Pine’s motion for summary judgment. While the objection to Exhibits G, H, I, Q, and S was not raised in a memorandum or by way of written motion to strike as contemplated by La. C.C.P. art. 966(F)(2) and (3), the parties do not dispute that the objection to the admissibility of these exhibits was brought before and addressed by the trial court. Therefore, we will consider plaintiffs’ argument with regard to these exhibits on appeal.

      . We note that Little Pine withdrew Exhibit K, to which plaintiffs had objected, prior to the hearing on the motion to strike and the motion for summary judgment.

      . Plaintiffs assert on appeal that they raised an objection as to certain exhibits attached to Exhibit E and raised an objection as to Exhibit V. However, there is no evidence in the record on appeal that an objection was made by plaintiffs as to these particular exhibits to Little Pine's motion for summary judgment, either in writing or at the hearing. Accordingly, because no objection was made on the record, these exhibits are deemed admitted for purposes of the motion for summary judgment. See La. C.C.P. art. 966(F)(2).

      . This issue was simplistically framed in 'the trial court as whether Little Pine had a duly to perform periodic controlled burns. More particularly, the parties argued whether La. R.S. 3:17 created a duty to perform such bums. However, the issue, as noted above; is not simply whether Little Pine had a duty to perform periodic controlled bums, but whether, in determining landowner liability in accordance with La. C.C. art. 2317.1, such burns were an exercise in reasonable care that could have prevented the long-burning fire and said fire’s contribution to the zero visibility conditions on the date of the accident.


source: Caselaw Access Project

author: McClendon, j. WELCH, J.,

license: Public Domain

text:
    J & M PILE DRIVING, LLC v. CHABERT INSURANCE AGENCY, LLC
    2017 CA 0126
    Court of Appeal of Louisiana, First Circuit.
    OCTOBER 25, 2017

      Mark Plaisance, Thibodaux, Louisiana, Henry J. Lafont, Jr., Larose, Louisiana, Counsel, for Plaintiffs/Appellants, J & M Pile Driving, LLC
    Joel Hanberry, Cut Off, Louisiana, Counsel, for Defendants/Appellees, Cha-bert Insurance Agency, LLC

      BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McClendon, j.

|gThe plaintiff appeals the judgment of the trial court that dismissed its suit for damages. The plaintiff, the owner of a vessel, asserted that the defendant insurance agency failed to secure insurance on the vessel before it sank. Finding no manifest error in the trial court’s judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

In August of 2010, the plaintiff, J & M Piling Driving, LLC (J & M), requested a quote for protection and indemnity (P & I) insurance and hull insurance from Chabert Insurance Agency, LLC (Chabert), on a newly-acquired vessel, the MW Lil Cherie. The M/V Lil Cherie sank on September 21, 2010. J & M learned it had no insurance coverage on the vessel after its claim was denied. Thereafter, J & M filed suit against Chabert, asserting that it was informed and believed it had full insurance coverage on the MW Lil Cherie. J & M alleged that Chabert never added the MW Lil Cherie to J & M’s existing policy as requested and that Chabert was therefore responsible for any and all damages suffered by J & M, including the value of the vessel, personal items on the vessel, salvage of the vessel, - and loss of income.

Following a bench trial on March 31, 2016, the trial court took the matter under advisement so that the parties could take the trial deposition of a former insurance agent at Chabert. The trial court issued written reasons for judgment on October 7, 2016, finding that Chabert did not breach its duty to J & M to procure insurance. The court determined that Chabert used reasonable diligence in trying to obtain insurance on the vessel and notifying J & M of the lack of coverage. The trial court also found that J & M failed to meet its burden to recover under the theory of detrimental reliance. On October 7, 2016, the trial court signed its judgment in favor of Chabert, dismissing J & M’s claims with prejudice.

J & M timely filed a devolutive appeal and assigned the following as error:

1. An insurance agent who undertakes to procure insurance for another has a duty to use reasonable diligence to place the insurance or to promptly notify the client if he has failed to obtain insurance. Because Chabert Insurance Agent Chris Brantley not only failed to obtain insurance—but provided J & M a | «certificate of insurance—Chabert breached its duty to procure hull coverage for the MW Lil Cherie; and
2. Because Chabert Insurance Agent Chris Brantley provided a certificate of insurance upon which J & M based its decision to lease the MW Lil Cherie, the trial court erred by denying J & M recovery under detrimental reliance.

LAW AND DISCUSSION

Standard of Review

It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). Where factual findings are based on determinations regarding the credibility of witnesses, the trier of fact’s findings demand great deference. Boudreaux v. Jeff, 03-1932 (La.App. 1 Cir. 9/17/04), 884 So.2d 665, 671; Secret Cove, L.L.C. v. Thomas, 02-2498 (La.App. 1 Cir. 11/7/03), 862 So.2d 1010, 1016, writ denied, 04-0447 (La. 4/2/04), 869 So.2d 889. Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell, 549 So.2d at 844.

J & M asserts that the manifest error standard of review does not apply when the trial court relies totally upon depositions of one party in rendering its decision, citing the eases of Ryan v. State, 477 So.2d 110 (La.App 1 Cir.), writ denied, 478 So.2d 136 (La. 1985), and American Cas. Co. v. Hartford Ins. Co., 479 So.2d 577 (La.App. 1 Cir. 1985), in support of its argument, However, the supreme court in Virgil v. American Guarantee & Liability Ins. Co., 507 So.2d 825 (La. 1987) (per curiam) held that the manifest error standard of appellate review applies even “when the evidence before the [ 4trier of fact consists solely of written reports, records and depositions.” Virgil, 507 So.2d at 826. In Shephard on Behalf of Shepard v. Scheeler, 96-1690 (La. 10/21/97), 701 So.2d 1308, the supreme court reaffirmed its holding in' Virgil, reiterating that Louisiana’s three-tiered court system allocates the fact finding function to the trial court, and that because of this institutional function great deference is accorded to the trial court’s factual findings, even when the record consists solely of documentary evidence. Shepard, 701 So.2d at 1316. See also Lindsay v. Greater New Orleans Expressway Com’n, 07-0222 (La.App. 1 Cir. 11/2/07), 2007 WL 3244990 (unpublished); Oil Ins. Ltd. v. Dow Chemical Co., 07-0418 (La.App. 1 Cir. 11/2/07), 977 So.2d 18, 23, writ denied, 07-2319 (La. 2/22/08), 976 So.2d 1284. Furthermore, we note'that J & M’s representative, Laurachel Soileau, testified at trial, and the tidal court had the opportunity to observe her demeanor and evaluate her credibility.

Insurance Agent’s Duty

An insurance agent has a duty to his client to procure insurance coverage. As explained in Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728, 730-31 (La. 1973):

An insurance agent who undertakes to procure insurance for another owes an obligation to his client to. use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage.

To recover for losses resulting from an insurance agent’s failure to procure insurance coverage, the plaintiff must establish: (1) an undertaking or agreement by the insurance agent to procure insurance; (2) failure of the agent to use reasonable diligence to obtain insurance and to notify the client promptly of the absence of coverage; and (3) actions by the agent which warranted the client’s assumption that he was insured in the amount of the desired coverage. Prest v. Louisiana Citizens Property Ins. Corp., 12-0513 (La. 12/4/12), 125 So.3d 1079, 1085-86.

In this matter, it is undisputed that J <& M* owned three , vessels between January 16, 2009, and September 21, 2010, and sought hull and P & I insurance for these vessels Rfrom Chabert. A policy of insurance for hull and P & I insurance was issued on January 16, 2009, on the first vessel, a steel barge designated as B5, through Essex Insurance Company (Essex), the underwriter. The second vessel, the M/V Laurachel, was purchased in March 2010 and was added to the existing insurance policy after receiving a quote and paying a premium effective March 24, 2010. The third vessel, the M/V Lil Cherie, was purchased by J & M on August 31, 2010, at which time J & M requested Chabert to add the M/V Lil Cherie to the existing policy.

The record establishes that J & M filled out an application for the M/V Lil Cherie and that Mr. Brantley submitted J & M’s application to Chabert’s insurance broker, Southern General Agency (SGA), on August 31, 2010. SGA confirmed the receipt of the application and that it was sent to Essex on September 3, 2010. What is disputed is what happened thereafter.

At trial, Laurachel Soileau, one of the owners of J & M, testified that Mr. Brant-rley informed her that the M/V Lil Cherie was fully covered when the application was submitted for hull and P & I insurance. According to Ms. Soileau, Mr. Brantley told her that the M/V Lil Cherie would be an add-on to the existing policy, similar to automobile policies. However, Mr. Brant-ley testified by deposition that he never indicated to Ms. Soileau that J & M had coverage on the M/V Lil Cherie. He testified that when a client requests insurance coverage on a marine vessel, the client has to fill out an'application, which would be submitted to a commercial underwriter, and wait for a premium quote. Mr. Brant-ley stated that, unlike automobile policies, he could not quote marine insurance in-house. He testified that he did not have binding authority for marine insurance policies and each vessel had to be submitted to the underwriter as new coverage. According to Mr. Brantley,, he was at.the mercy of the underwriter. He also testified that it was not until after the quote was received and a premium, payment made that coverage became binding. .

Mr. Brantley followed up with SGA several times between the date of the filing of the application for the M/V Lil Cherie and the date the vessel sank. Copies of emails |fiadmitted into evidence show that he contacted SGA on September 8, September 14, and September 21, 2010. Particularly, the September 14,2010.email stated: “Any update, on the endorsements for this account? Insured is calling me everyday to see if I have something for him.” A quote was never received on J. & M’s application for the M/V Lit Cherie.

The trial court specifically found. Mr. Brantley’s testimony to be more credible than J & M’s witnesses and documentary evidence. It- also determined that Mr. Brantley did not indicate to J & M .that the M/V Lil Cherie was covered. The trial court found that Chabert timely processed J & M’s application for insurance coverage and promptly sent the information to SGA for the determination of a quote. The court concluded that Chabert acted with reasonable diligence to procure insurance on the vessel and that Chabert timely advised J & M of its failure to obtain coverage. Upon our thorough review of the record, we can find no manifest error by the trial court in .these factual findings. Accordingly, the trial court did not err in finding that Chabert was not responsible for J & M’s losses based on a failure to use reasonable diligence to place the insurance or to promptly notify the client if he failed to obtain insurance.

Detrimental Reliance

J & M next argues that it relied on Mr. Brantley’s assurances and is therefore entitled to recover its losses under the doctrine of detrimental reliance. The theory of detrimental reliance is codified in LSA-C.C. art. 1967, which provides, in pertinent part:

A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. Suire v. Lafayette City-Parish Consol. Government, 04-1459 (La. 4/12/05), 907 So.2d 37, 59.

17Having previously determined that Mr. Brantley did not tell J & M that their vessel was covered, the trial court found that J & M failed to meet its burden to recover under the theory of detrimental reliance. The trial court determined that J & M was aware that without a quote and a payment of the premium, the M/V Lil Cherie would not be insured. Additionally, although two certificates of liability insurance were improperly issued by Chabert, the trial court found that J & M could not have reasonably relied upon the certificates of liability insurance for hull coverage. We find no manifest error in these findings and cannot say that the trial court was clearly wrong.

CONCLUSION

For the above and foregoing reasons, we affirm the October 7, 2016 judgment of the trial court in favor of the defendant, Cha-bert Insurance Agency, LLC. All costs of this appeal are assessed to the plaintiff, J & M Pile Driving, LLC.

AFFIRMED.

THERIOT, J. Concurs

Welch J. dissent and assign reasons.

WELCH, J.,

dissents.

|,I respectfully disagree with the majority opinion because the judgment of the trial court should be reversed. The record establishes that the insurance agent failed to inform the plaintiff that he was unable to get an insurance quote on the vessel and that they had no insurance, even though he had knowledge that the plaintiff were entering into a lease of the vessel. Next, the insurance agent gave certificates of insurance to two separate entities indicating that the boat was covered by insurance. This would lead an unsophisticated person to believe that the vessel was covered by insurance. Therefore, the insurance agency and agent should be liable for the damages sustained by plaintiffs when the vessel sank.

Thus, I respectfully dissent.

      . After the. M/V Lil Cherie sank, J & M learned that the M/V Laurachel was not insured although it paid a down payment and monthly premiums to a finance company. As a result of this discovery, the endorsement was applied retroactively to March 24, 2010, the date the quote was provided to J & M.

      . We note that a certificate of insurance is not the same as a binder. A binder is used to bind insurance temporarily pending the issuance of the policy. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La.App. 1 Cir. 9/10/10), 47 So.3d 1024, 1029, writ denied, 10-2227 (La. 11/19/10), 49 So.3d 387. The certificates issued in this matter each contained a disclosure that they were issued for informational purposes only and did not amend, extend, or alter the policy’s coverage.


author: PENZATO, J.

text:
    Jamie MYERS and Ericka Myers, individually and on behalf of their minor Deceased Child, Tyler Myers, and Peyton Myers (their minor Son) v. Brad M. WELCH, Valentine & LeBlanc, LLC; Security National Insurance Company and Southern Farm Bureau Casualty Insurance Company
    2017 CA 0063
    Court of Appeal of Louisiana, First Circuit.
    OCTOBER 25, 2017
    Rehearing Denied November 29, 2017

      Sean D. Fagan, Locke Meredith, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellants, Jamie Myers and Ericka Myers Individually and on Behalf of Their Minor Deceased Child, Tyler Myers and Peyton Myers (Their Minor Son)
    Robert I. Siegel, Jonathan S. Ord, New Orleans, Louisiana, Counsel for Defendant/Appellee,. AIG Specialty Insurance Company
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

' | ¡¿Plaintiffs, Jamie arid Ericka Myers, individually and on behalf of their son Pey-ton Myers, and the estate of their minor deceased child, Tyler Myers (“The Myers Family”), appeal a summary, judgment iri favor of the defendant, AIG Specialty Insurance Company (“ASIC”), dismissing all claims and causes of action against ASIC with prejudice. For the reasons that follow, we affirm. • ’

FACTS AND PROCEDURAL HISTORY

On September 24, 2012, as Brad Welch was turning into the driveway of his house, he struck six-year-old Tyler Myers, resulting in Tyler’s death. Tyler’s parents, Jamie and Ericka Myers, filed a petition for damages, individually, and on behalf of their twelve-year-old son Peyton and their deceased child Tyler, seeking wrongful death, survival, .and bystander damages, as well as punitive damages. Named as defendants were Brad Welch (“Welch”) and his employer, Valentine & Leblanc, LLC (“Valentine &. Leblanc”). Security National Insurance Company (“Security National”) was also named as a defendant because the vehicle driven by - Welch was expressly identified and listed as a “covered auto” under a policy issued by Security National to Valentine <& Leblanc,

Valentine & Leblanc and Security National filed a motion for summary- judgment asserting that Valentine & Leblanc had no liability because at the time of the accident, Welch was not acting- in the course and scope of his employment, and that the Security National policy did not cover. Welch because at the time of the accident, Welch was not an insured person under the policy. While the motion for summary judgment was pending, the parties participated in a successful mediation.

|sThe Myers Family then added Chartis Specialty Insurance Company, which later became known as AIG Specialty Insurance Company (“ASIC”), as a defendant pursuant to a commercial umbrella liability policy issued to Valentine & Leblanc. The Myers Family’s claims against Welch, Valentine & Leblanc and Security National were dismissed with prejudice, with Welch and Valentine & Leblanc remaining as nominal defendants only for purposes of pursuing the reserved and assigned rights of The Myers Family against ASIC.

Motions for Summary Judgment-Action of the Trial Court

On November 19, 2014, ASIC filed a motion for summary judgment alleging that the ASIC policy of insurance issued to Valentine & Leblanc did not provide coverage. ASIC argued that Welch was not acting in the scope of his employment at the time of the accident, and that he was not included as an additional insured under the Security National policy, and therefore was not provided coverage by the ASIC umbrella policy. The trial court granted the motion for summary judgment in favor of ASIC, finding that while Welch may have qualified as an omnibus insured under the Security National policy, that did not mean that he was an “additional insured” under the ASIC policy. A judgment granting the motion for summary judgment and dismissing with prejudice all of The Myers Family’s claims against ASIC was signed December 7,2015.

The Myers Family filed a motion for new trial on the summary judgment, asserting that Welch was an “additional insured” under the Security National policy by operation of the omnibus clause, and therefore was an insured under the ASIC policy. The motion for new trial came for hearing on Feb 29, 2016. At that time, the trial court indicated that it had some “misgivings” following its previous ruling, and concluded that if Welch did qualify as an omnibus insured under the Security National policy, “he would be in the general understanding of the term an ‘additional insured’.” The trial court granted the motion for new trial and denied [¿the motion for summary judgment previously rendered in favor of ASIC. A judgment reflecting same was signed on March 17, 2016.

Thereafter, The Myers Family filed a motion for summary judgment on coverage, asserting that Welch was an additional insured under the Security National policy, and as such qualified as an insured under the ASIC policy. Central to The Myers Family’s argument was that Welch was driving a vehicle identified in the policy as being owned by Valentine & Leblanc.

ASIC also filed a motion for summary judgment as to coverage, asserting that Welch did not qualify as an insured under the Security National policy for his personal use of a vehicle that he owned, and was thus not afforded coverage by the ASIC policy. In support of its motion, ASIC introduced several exhibits, including Welch’s admissions that at the time of the accident he was not within the scope of his employment with Valentine & Leblanc and that he was driving a vehicle that he personally owned; and the affidavit of John Valentine, the president and owner of Valentine & Leblanc, stating that at the time of the accident Valentine & Leblanc did not own or pay for the vehicle that Welch was driving. Valentine further attested that the vehicle was listed as a covered vehicle on Valentine & Leblanc’s automobile insurance policy because the vehicle was used in part for work.

The Myers Family objected to the introduction into evidence of the exhibits, arguing that the inclusion of Welch’s vehicle on the Security National policy’s “Schedule of Covered Autos You Own” precluded further inquiry into ownership of the vehicle. The Myers Family argued that the terms of the Security National policy unequivocally established that, for purposes of the policy, Valentine & LeBlanc owned the vehicle involved in the accident and that the Louisiana Civil Code prohibited the use of extrinsic evidence to reform the policy’s declaration of ownership.

IsThe motions for summary judgment were heard in open court on August 1, 2016. The trial court allowed into—evidence the Welch admissions and the Valentine affidavit, and considering such evidence, found that at the time of the accident, Welch was driving a vehicle that he and his wife owned, and under that factual situation the exception in the Security National policy for an employee driving his own auto applied, Additionally, the trial court held that since Welch was not an insured pursuant to the exception in the Security National policy, he was not an additional insured under the ASIC policy. In a judgment signed September 8, 2016, the trial court denied The Myers Family’s motion for partial summary judgment, granted ASIC’s motion for summary judgment, and dismissed all claims and causes of action against ASIC. The Myers Family appealed.

ASSIGNMENT OF ERRORS

The Myers Family asserts the following assignments of error:

1.The trial court, erred by denying The Myers Family’s motion for summary judgment;
2. The trial court erred by admitting extrinsic evidence concerning ownership of the accident vehicle;
3. The trial court erred by overruling The Myers Family’s objections; and
4. The trial court erred by granting ASIC’s motion for summary judgment.

LAW AND DISCUSSION

On appeal, summary judgments are reviewed de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Rider v. Ambeau, 2011-0532 (La. App. 1 Cir. 2/1/12), 100 So.3d 849, 854. A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents 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. Code Civ. Pro. art.. 966 A(3).

A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See La. Code Civ. Pro. art. 966 E; Rider, 100 So.3d at 854. 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. Reynolds v. Select Properties, Ltd., 93-1480 (La. 1994), 634 So.2d 1180, 1183.

Relevant Provisions Under Umbrella and Automobile Policies

The ASIC Umbrella Policy

ASIC issued a commercial umbrella liability policy to Valentine & Leblanc, in effect at the time of the accident, that provided the following coverage:

We will pay on -behalf of the Insured those sums in excess of the Retained Limit that the Insured becomes legally obligated to pay as damages by reason of liability- imposed by law because of Bodily Injury, Property Damage or Personal Injury and Advertising Injury to which this insurance applies or because of Bodily Injury or Property Damage to which this insurance applies assumed by the Insured under an Insured Contract.

The policy defines “Insured”, in pertinent part, as:

1. the Named Insured;
[...]
3. your employees other than your executive officers...; but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business;
[...]
77. Any person or organization, other than the Named Insured, , included as an additional insured in the ¡policies listed in Scheduled Underlying Insurance however: '
a. coverage will not be broader than is available to such person or organization under such Scheduled Underlying Insurance. .. .
The Security National auto liability policy was included on the ASIC

policy’s “Schedule of Underlying Insurance”. -

The Security National Policy

The Security National policy of commercial automobile insurance issued to Valentine & Leblanc, which was in effect at the time of the accident, provided the following coverage:

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto”.

The policy further provided, in pertinent part:

1. Who Is An Insured
The following are “insureds”:
a. You for any covered “auto”.
b. . Anyone else while using with your * permission a covered “auto” you own, hire or borrow except:
(1) The owner or anyone else from whom you hire or borrow a cov- ‘ ered “auto”.
(2) Your “employee” if the covered “auto” is owned by that “employ- ■ ee” or a member of his or her household.

|sThe policy also contained an endorsement entitled “Employees as Insureds” that -added the following to the “Who is an Insured” provision:

Any “employee” of yours is an “insured” while using a covered “auto” you don’t own, hire or borrow in your business or your personal affairs.

Finally, the policy contained a “Schedule of Covered Autos You Own”, which listed 35 specific “units” including, as Unit # 19, the 2006 Dodge Pickup that Welch was driving at the time of the accident.

Use of Extrinsic Evidence

We first consider The Myers Family’s second and third assignments of errors regarding the admission of evidence concerning ownership of the vehicle. In the instant case we are called upon to determine whether the inclusion of the vehicle in question on the “Schedule of Covered Autos You Own” precludes any further inquiry into the ownership of the vehicle for any other purpose under the policy, more specifically to determine the status of Welch as an “insured” at the time of the accident. The trial court found that the law did not prohibit the introduction of extrinsic evidence concerning ownership of the vehicle, as the evidence went to the facts to prove coverage. As noted above, The Myers Family argues that the inclusion of the vehicle driven by Welch at the time of the accident on the Security National policy’s “Schedule of Covered Autos You Own” unequivocally establishes that, for purposes of the policy, Valentine & LeBlanc owned the vehicle involved in the accident and that the Louisiana Civil Code prohibits the use of extrinsic evidence to reform the policy’s declaration of ownership.

IflAn insurance policy is a contract between the parties and should.be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code, Reynolds, 634 So.2d at 1183. Words and phrases used in a policy are to be construed using their generally prevailing meaning, unless the words have acquired a technical meaning. See La. Civ. Code art. 2047.- An insurance policy should not be interpreted in an unreasonable or a 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. Where the language in the policy is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. Reynolds, 634 So.2d at 1183.

The purpose of liability insurance- is to afford the insured protection from damage claims; therefore, policies should be construed to effect, not to deny, coverage. Thus, a provision which seeks to narrow the insurer’s obligation is strictly construed against the insurer, and, if . the language of the exclusion is subject to two or more reasonable, interpretations, the interpretation which favors coverage must be applied. Id It is equally well settled, however, that subject to the above rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory' provisions or public policy. Id.

Parol evidence cannot be introduced when the provisions, of an .insurance contract are clear and explicit, and lead to no absurd consequences; courts must enforce the contract as written. See La. Civ. Code art. 2046. Furthermore, courts are prohibited from taking parol evidence to explain or contradict the insurance contract’s clear meaning. The meaning and intent of the parties must be sought within the four corners of the insurance contract. La. Civ. Code art. 1848 ; Peterson v. Schimek 98-1712 (La. 3/2/99), 729 So.2d 1024, 1028.

Our initial inquiry is whether the language of the policy is ambiguous. We find no ambiguity within the four corners of the document. There is, however, no dispute that absent its' inclusion on the schedule of owned autos, Valentine & Le-Blanc had no ownership, credit, or leasehold interest in Welch’s vehicle. Further, there is no evidence Valentine & LeBlanc purchased the vehicle for Welch’s use. Therefore, while “owned” is not defined by the policy, tips fact in and of itself does not create an ambiguity. However, our analysis does not end with this determination. The evidence herein is not offered to vary the terms of the contract, i.e. to remove or delete the vehicle in question as a covered auto, but is offered and is appropriate for consideration where a party raises a factual issue as to the applicability of a contract provision. See Rolston v. United Servs. Auto. Ass’n, 2006-0978 (La. App. 4 Cir. 12/13/06), 948 So.2d 1113, 1119.

Although parol evidence may not be introduced to vary the actual terms or provisions of a policy, evidence may be introduced to determine whether a policy is in force. Isaac v. Patterson Ins. Co., 97-608 (La. App. 3 Cir. 10/8/97), 702 So.2d 918, 922, writ denied, 97-2806 (La. 1/30/98), 709 So.2d 709. In Sieferman v. State Farm Mut. Auto. Ins. Co., 2000-71 (La. App. 3 Cir. 5/3/00), 760 So.2d 549, according to the State Farm policy’s declaration’s page, the policy provided benefits for the accidental death of the plaintiffs former husband, Mr. Parris Decuir. State Farm Opposed summary judgment with affidavits indicating that the plaintiff had cancelled the coverage prior to the accident. The court concluded that the consideration of the affidavits would not be inapposite to the reasoning of Peterson, 729 So.2d 1024, since they were not offered to assist in the interpretation of certain terms and conditions of the insurance policy but related to whether or not the death provision of the policy was in force as to Mr. Decuir at the time of his death. The court concluded that the trial court erred in failing to | ^consider the affidavits in its ruling on the motion for summary judgment. Sieferman, 760 So.2d at 553.

Similarly, in this case, we find that Welch’s admissions and the relevant portions of John Valentine’s affidavit were not offered to alter the terms and conditions of the insurance contract, but were offered to present evidence as to the applicability of a contract provision determining whether coverage for Welch was in effect at the 'time of the accident. Thus, the evidence was properly admitted and considered by the trial court.

Coverage under the Policies

Finding that it is appropriate to consider the Welch admissions and the Valentine affidavit regarding ownership of the vehicle, we now address The Myers Family’s assignments of error one and four and look to coverage under the relevant policies.

We first examine the ASIC policy, which, as noted above, defines “Insured”, in pertinent part, as:

1. the Named Insured;
[.••]
3. your employees ..., but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business;
[•••]
7. Any person or organization, other than the Named Insured, included as an additional insured in the policies listed in Scheduled Underlying Insurance however:
a. coverage will not be broader than is available to such person or organization under such Scheduled Underlying Insurance

There is no dispute that Welch was not a named insured, and while an employee of Valentine & Leblanc, was not acting within the scope of his employment or performing duties related to the business of Valentine & Leblanc at the time of the accident. Therefore, coverage is available under the ASIC policy only if Welch was included as an additional insured under the underlying Security | iaN ational policy.

We next examine the section entitled ‘Who Is An Insured” under the Security National policy, including the endorsement thereto:.

The following are “insureds”:
a. You for any covered “auto”.
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(1) The owner or anyone else from whom you hire or borrow a covered “auto”.
(2) Your “employee” if the covered “auto” is owned by that “employee” or a member of his or her household.
Any “employee” of yours is an “insured” while using a covered “auto” you don’t own, hire or borrow in your business or your personal affairs.

Again, there is no dispute that Welch was not a named insured, and was not engaged in Valentine & Leblanc’s business, nor was there an assertion that Welch was engaged in Valentine & Leblanc’s personal affairs. Therefore, in order for Welch to have been insured under the Security National policy, he must quality as a “permissive user” under subsection (b). The Myers Family focuses on the language contained in subsection (b), and asserts that Welch was usin¿ with Valentine & Leblanc’s permission an auto owned by Valentine & Leblanc by virtue of its inclusion on the policy’s “Schedule of Covered Autos You Own”, thereby making Welch an insured under the Security National policy.

However, the provision relied upon by The Myers Family contains an exclusion, as reflected in subsection (b)(2), namely that a permissive user is an insured unless that person is an “employee” and the covered “auto” is owned by that employee or a member of his or her household. As discussed earlier, The Myers Family argues that the exclusion is inapplicable, because the vehicle’s inclusion on the policy’s “Schedule of Covered Autos You Own” unequivocally | ^established that for purposes of the policy Valentine & Leblanc, not Welch, owned the vehicle.

We find that coverage under the underlying Security National policy is not extended to Welch because he falls within the “owner exception” contained in the definition of insured. The owner exception set forth in subsection 1(b)(2) of the Security National policy taken in its plain, ordinary sense is easily understood to mean that no coverage exists for an employee using a covered auto if that employee is also the owner of the auto. Welch admitted in responses to discovery that at the time of the accident he was driving a vehicle that he personally owned. In addition, John Valentine testified by affidavit that' at the' time of the accident Valentine & Leblanc did not own or pay for the vehicle that Welch was driving.'

The Myers Family’s contention that Valentine & Leblanc owned the vehicle for purposes of coverage based solely on its inclusion on the policy’s “Schedule of Covered Autos You Own” leads to & strained interpretation of the policy and achieves an absurd conclusion. The absurd conclusion in this case is that the insurer could be liable for damages caused by a Valentine & Leblanc employee driving his personal vehicle outside the course and scope of his employment, a situation in which ¡¡Valentine & Leblanc would not be liable. Further, as the trial court noted, the vehicle could have been sold but the policy not changed, and under The Myers Family’s interpretation there would still be coverage. Moreover, since Valentine & Leblanc did not actually own the vehicle, it had no capacity to give Welch permission to use the vehicle that Welch himself owned.

The Myers Family additionally contends that the owner exception set forth in subsection 1(b)(2) of the policy is unenforceable because it is not one of the legislature’s enumerated exceptions to La. R.S. 32:900, citing Sensebe v. Canal Indent. Co., 2010-0703 (La. 1/28/11), 58 So.3d 441, 451. However, the ASIO policy is an umbrella policy, ■ a voluntary “automobile liability policy,” and, as such, |14omnibus insured coverage is not required under the ■ mandate of La. R.S. 32:900. Allen v. Allstate Ins. Co., 2008-1451 (La. App. 3 Cir. 5/6/09), 10 So.3d 374, 380, writ denied, 2009-1264 (La, 9/18/09), 17 So.3d 977. To the contrary, the insurer in an umbrella policy is not providing compulsory coverage and has the right to express the limits of its liability. Id. (citing Walker v. State Farm Mut. Auto, Ins., 37,063, p. 11 (La. App. 2 Cir. 6/25/03), 850 So.2d 882, 889, writs denied, 2003-2019, 2003-2117 (La. 12/19/03), 861 So.2d 575, 575). Moreover, such a provision has been upheld by the Louisiana Supreme Court. See, e.g., Carrier v. Reliance Ins. Co., 1999-2573 (La. 4/11/00), 759 So.2d 37, 45.

Thus we find no error in the trial court’s finding that as there was no coverage for Welch under the underlying Security National policy issued to Valentine <& Leblanc, there was no coverage under the ASIC policy.

CONCLUSION

For the above reasons, we affirm the September 8, 2016 judgment of the trial court denying The Myers Family’s motion for partial summary judgment, granting ASIC’s motion for summary judgment, and dismissing all claims and causes of action against ASIC. All costs of this appeal are assessed to the plaintiffs/appellants.

AFFIRMED.

Holdridge J., concurs.

      . The petition alleged that Welch and Valentine & Leblanc were underinsured, and also named Southern Farm Bureau Casualty Insurance Company as a defendant pursuant to a policy of uninsured/underinsured motorist coverage issued to Jamie and Ericka Myers. The record does not reflect that Southern Farm Bureau was served with the petition, and it is not involved in this appeal.

      . We note that in its -motion for summary judgment and in its brief to this court, ASIC used the following version of paragraph 7, which was deleted in its entirety and replaced with the above quoted language pursuant to Endorsement No. 8 of the policy, effective August 31, 2012:
      7 any person or organization, other than the Named Insured, included as an additional insured under Scheduled Underlying Insurance, but not for broader coverage than would be afforded by such Scheduled Underlying Insurance. Notwithstanding any of the above:
      [...]
      b. no person or organization’s an Insured under this policy who is not an Insured under applicable Scheduled Underlying Insurance.
      We use the language in effect at the time of the accident, and note that the change to this paragraph is stylistic only and does not change the substance of the definition of "Insured.”

      . In addition to The Welch Admissions and the Valentine affidavit, The Myers Family objected to the admission of memoranda filed by the parties in connection with other motions. We have not considered these exhibits in our review, and therefore do not address their admission. With regard to the Valentine affidavit, The Myers Family objected to the last two sentences of paragraph five as speculation and the third sentence of paragraph eleven as hearsay. Likewise, as we do not consider those portions of the affidavit, we do not address their admission.

      . Louisiana Civil Code article 1848 provides: "Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or, an act under private signature.”