author: WHIPPLE, C.J.

text:
    Deborah RIEDEL, Individually, and on Behalf of Her Minor Children, Rachel Riedel and Jeremy Canzoneri v. Angie FENASCI, Hollie Realty, L.L.C./Remax Northshore, Frank Cali, Theresa Cali, Landon Yarborough, Coldwell Banker Bobby Tallo Realty, ABC Insurance Company, DEF Insurance Company, GHI Insurance Company, JKL Insurance Company, MNO Insurance Company, and PQR Insurance Company
    NUMBER 2018 CA 0538
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: December 28, 2018
    James E. Shields, Sr., Gretna, LA, Counsel for Defendant-in-Reconvention/ Appellant, Deborah Riedel
    John E. McAuliffe, Jr., Metairie, LA, Counsel for Intervenor/Appellee, State Farm Fire and Casualty Company
    Samuel P. Baumgartner, Covington, LA, Counsel for Defendants/Appellees, Frank Cali and Theresa Cali
    John I. Feduccia, Hammond, LA, Counsel for Defendants/Plaintiffs-in-Reconvention/Appellees, Frank Cali and Theresa Cali
    Gary J. Giepert, Jonathan S. Giepert, New Orleans, LA, Counsel for Defendants/Appellees, Angie Fenasci and Hollie Realty
    Michael P. Bienvenu, Baton Rouge, LA, Counsel for Defendants/Appellees, Landon Yarborough and Bobby Tallo Realty
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

This matter is before us on appeal by defendant-in-reconvention, Deborah Riedel, from a judgment of the trial court granting summary judgment in favor of plaintiffs-in-reconvention, Frank and Theresa Cali. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On April 25, 2014, Riedel, with the assistance of real estate agent Angie Fenasci, entered into a purchase agreement for a condominium located at 2700 Rue St. Martin, Unit A, in Hammond, Louisiana, that was owned by Frank and Theresa Cali. On that same date, Riedel also completed an "Owner Finance Application" to secure potential financing for her purchase of the property from the Calis.

Following a home inspection of the property by Dale Brunet of Brunet's Home Inspection, LLC, Riedel executed a promissory note and credit deed (mortgage) on May 9, 2014, through which she purchased the property from the Calis for the sum of $67,500.00. Riedel paid a down payment of $25,000.00 and financed the balance of $42,500.00 with the Calis with interest of 6.75% until paid in full via an owner-financed promissory note. According to the terms of the note, Riedel was to make 240 equal monthly installments of $323.15 each, commencing June 1, 2014, and on the same day of each month thereafter, until paid.

Riedel contends that after moving into the home, she detected moisture and smelled a "strong odor" that worsened each day, and that she and her children "began feeling very ill and developed illnesses." Thereafter, on May 6, 2015, Riedel individually, and on behalf of her minor children, filed a petition for damages against the Calis, Yarborough, Coldwell Banker Bobby Tallo Realty, L.L.C., Fenasci, and Hollie Realty, L.L.C./RE/MAX Northshore, asserting claims of fraud and misrepresentation and contending that they "had to have known" about the moisture and mold in the home before it was sold. Specifically, Riedel asserted breach-of-fiduciary-duty claims against Frank Cali, Landon Yarborough, and Angie Fenasci as licensed agents and breach of contract claims and "re-habitation violations" against Frank and Theresa Cali as owners of the property. Riedel accordingly sought damages for illnesses and injuries that she and her children purportedly suffered as a result of exposure to "black mold" found in the home.

The Calis answered the petition and subsequently filed a reconventional demand against Riedel, as holders of the May 9, 2014 promissory note, averring that Riedel had not made any payments on the promissory note since her payment in December of 2014, and had further defaulted on payment of ad valorem taxes imposed on the property by the Parish of Tangipahoa and the City of Hammond. The Calis thereby sought judgment condemning Riedel to pay the sum of $41,862.34 plus interest at 6.75% per annum until paid, an additional sum for late charges, reimbursement of ad valorem taxes paid by the Calis, and 25% of that amount as attorney's fees and costs.

Riedel answered the reconventional demand, adopting as affirmative defenses the claims she had asserted against the defendants in her petition for damages on the main demand, "not limited to fraud, deceit and redhibition rights."

Thereafter, the Calis, as plaintiffs-in-reconvention, filed a motion for summary judgment, seeking judgment in their favor on the claims asserted against Riedel in their reconventional demand. Motions for summary judgment were also filed by the Calis, Fenasci, and Hollie Realty, L.L.C. seeking dismissal of Riedel's claims in the original demand.

The three motions for summary judgment were heard before the trial court on August 28, 2017. Following the hearing, the trial court granted the motions for summary judgment filed by the Calis, Fenasci, and Hollie Realty, L.L.C., and dismissed with prejudice the claims Riedel had asserted against them in the main demand. Thereafter, the trial court granted the motion for summary judgment by the Calls, as plaintiffs-in-reconvention, on the claims asserted against Riedel in their reconventional demand.

On September 20, 2017, the trial court signed a judgment, granting the summary judgment in favor of the Calis, and against Riedel, finding that there were no genuine issues of material fact remaining and that the Calis were entitled to judgment in their favor as a matter of law on the issue of Riedel's indebtedness for the May 19, 2014 promissory note and mortgage. The trial court rendered judgment in favor of the Calis and against Riedel for: the balance of the note in the amount of $41,862.34, plus interest at the rate of 6.75% from January 1, 2015, until paid; reimbursement of ad valorem taxes to the Calis in the amount of $2,357.23; accruing late charges for her non-payment of installments on the note at the rate of $50.00 per month for each calendar month from January 1, 2015 until paid; reimbursement of insurance premiums in the amount of $1,881.91; and attorney's fees of 25% of all principal and interest on the amounts due and all costs.

Riedel now appeals, contending that the trial court erred in prematurely granting summary judgment on the reconventional demand, contending: (1) that this appeal should be "stayed" until the two companion appeals are ruled upon by this court; and (2) that the issues presented in the reconventional demand are appropriate for jury consideration.

DISCUSSION

Summary Judgment

After an opportunity for adequate discovery, 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. LSA-C.C.P. art. 966(A)(3). A party may move for a summary judgment for all or part of the relief for which he has prayed. LSA-C.C.P. art. 966(A)(1). A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties. LSA-C.C.P. art. 966(E). However, a summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. LSA-C.C.P. art. 966(F).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue before the court on the motion for summary judgment, the mover's burden does not require that he negate all essential elements of the adverse party's claim, action, or defense, but rather to point to the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966(D)(1).

When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in LSA-C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). 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. First Bank and Trust v. Sharp, 2017-0284 (La. App. 1st Cir. 2/20/18), 243 So.3d 16, 19.

Summary judgment is an appropriate procedural device to enforce a negotiable instrument when the defendant establishes no defense against enforcement. Winston v. Hall, 2017-1097, p. 3 (La. App. 1st Cir. 4/6/18), 2018 WL 1663020 (unpublished), citing American Bank v. Saxena, 553 So.2d 836, 845-846 (La. 1989). In a suit to collect on a promissory note, once the plaintiff, as holder of the note, proves the maker's signature, or the maker admits it, the holder has made out his prima facie case by mere production of the note. The burden then shifts to the defendant to prove the existence of a triable issue of material fact and/or any affirmative defenses. Hancock Bank of Louisiana v. C & O Enterprises, LLC, 2014-0542 (La. App. 1st Cir. 12/23/14), 168 So.3d 595, 599, writ denied, 2015-0621 (La. 5/22/15), 171 So.3d 251 ; American Bank v. Saxena, 553 So.2d at 846 ; Winston v. Hall, 2017-1097 at p. 3. Fraud, error or mistake, failure of consideration, and lack of consideration are affirmative defenses that may be asserted by the defendant. See LSA-C.C.P. art. 1005. Fraud and error may vitiate consent. See LSA-C.C. art. 1948.

In support of their motion for summary judgment as to the claims asserted in their reconventional demand, the Calis offered: (1) a copy of the promissory note; (2) a copy of the recorded credit deed; (3) the joint affidavit of Frank and Theresa Cali; (4) excerpts of Riedel's deposition testimony; (5) affidavit of the notary public/closing attorney and witnesses to the credit deed; and (6) the affidavit of Dale Brunet.

The promissory note and credit deed submitted in support of the Calis's motion for summary judgment contain Riedel's signature. In her deposition testimony, Riedel admitted that the signatures on the documents were hers. Moreover, Riedel readily conceded that she had not made any payments on the note since January of 2015. The affidavit executed by J. Mark Rolling, the closing attorney and notary public on the May 9, 2014 credit deed, and Diana Holbert and Linda M. Franks, the witnesses to the signing of the deed, sets forth that they witnessed Riedel signing the note and credit deed, as well as executing her initials on the "AS IS/WHERE IS" clause contained within the credit deed.

The credit deed provides that if the note should be "placed in the hands of an attorney for collection, or suit [was] brought," the "purchaser shall pay an additional sum of twenty-five percent (25%) of the amount of principal and interest then owing as attorney's fees, and all other costs of [the] suit." The credit deed further provides that the purchaser agrees to keep the buildings on the mortgaged property insured with both hazard and flood insurance with limits of $67,500.00 and general liability coverage of $300,000.00, and that:

on default of payment of taxes at any time, any holder of any said above mentioned notes may pay said taxes at any time, any holder of any said above mentioned notes may pay said taxes or and charge same to purchasers, and the amount so paid shall bear the same rate of interest as said [note], and be enforceable as part of the original obligation, and be the same process as the original obligation, including attorney's fee[s].

The affidavit executed by the Calis sets forth: that Riedel was delinquent on her payments of the note since January 1, 2015; that pursuant to the credit deed, Riedel was obligated to reimburse the Calis for the payment of ad valorem city and parish taxes; that pursuant to the note, Riedel was responsible for accrued late charges of $50.00 per month; and that Riedel was obligated to reimburse the Calis for expenses incurred for maintaining fire and casualty insurance on the property pursuant to the terms of the credit deed.

In Riedel's opposition to the motion for summary judgment and in her brief on appeal, she essentially argues that the summary judgment that was granted is "premature and invalid" and that she should have been allowed the opportunity to appeal the dismissal of her claims in the main demand before summary judgment was granted on the reconventional demand. Riedel further contends that if the two companion appeals are reversed, her defenses of "fraud, redhibition, failure to disclose" asserted in her main demand also serve as affirmative defenses to the reconventional demand. In support of these contentions, Riedel relies on the exhibits, adopted "in toto, " which she offered in opposition to the motions for summary judgment on the merits of the main demand.

As to Riedel's contentions that any grant of summary judgment and appeal on the reconventional demand is premature, we note that all three motions for summary judgment were set for hearing on August 28, 2017. A review of the transcript reveals that the matters were called for hearing and appearances were made. The trial court granted the motions for summary judgment and dismissed Riedel's claims against all defendants on the main demand, then proceeded to address the Calis's motion for summary judgment on their reconventional demand. During this hearing, no objection was made by Riedel to the trial court hearing the motion for summary judgment on the reconventional demand. Given the absence of any objection to the trial court hearing the motion, we find no merit to her complaint that the motion was heard prematurely.

Moreover, to the extent that Riedel relies on the affirmative defenses of "fraud, redhibition, failure to disclose," which were asserted in her main demand against Fenasci, Yarborough, and the Calls, we have found no error by the trial court in dismissing those claims and have affirmed the granting of summary judgment in the companion appeals to this matter. See Riedel v. Fenasci, 2018-0539 (La. App. 1st Cir. 12/28/18), --- So.3d ----, 2018 WL 6839564, and Riedel v. Fenasci, 2018-0540 (La. App. 1st Cir. 12/28/18), --- So. 3d ----, 2018 WL 6818716, also handed down this date. As such, any reliance on these claims as affirmative defenses cannot serve to create a material issue of fact herein.

Finally, to the extent that Riedel contends that this matter should be tried before a jury, we note that a request for trial by jury does not of itself preclude a motion for summary judgment. See American Bank & Trust Company in Monroe v. Carson Homes, Inc., 344 So.2d 456, 459 (La. App. 2nd Cir. 1977), writ denied, 346 So.2d 221 (La. 1977).

Because Riedel failed to offer any evidence to establish an affirmative defense to her liability on the note or to otherwise prove the existence of a triable issue of material fact as to her execution of the promissory note and credit deed, on de novo review, we find no error in the trial court's grant of summary judgment in the instant matter.

CONCLUSION

For the above and foregoing reasons, the September 20, 2017 judgment of the trial court, granting summary judgment in favor of plaintiffs-in-reconvention/appellees, Frank and Theresa Cali, and against Riedel, is hereby affirmed. Costs of this appeal are assessed to defendant-in-reconvention/appellant, Deborah Riedel.

AFFIRMED.

Higginbotham, J. Concurs.

McClendon, J. Concurs.

      While we have set forth the pertinent underlying facts pertaining to the issues and judgment dismissing the reconventional demand, a full recitation of the underlying facts and procedural history of this case is contained in the companion opinion to this appeal, Riedel v. Fenasci, 2018-0540 (La. App. 1st Cir. 12/28/18), --- So.3d ----, 2018 WL 6818716, also handed down this date.

      Fenasci was employed by Hollie Realty, L.L.C./RE/MAX Northshore.

      Landon Yarborough, a nephew of Theresa Cali and a licensed real estate agent for Coldwell Banker/Bobby Tallo Realty, listed the unit for sale and was granted a specific power of attorney by the Calis to enable him to execute all documents necessary to sell the condominium.

      The trial court signed judgments on October 4, 2017, granting summary judgment in favor of Frank and Theresa Cali as defendants, and on November 6, 2017, granting summary judgment in favor of Fenasci and Hollie Realty, L.L.C., which Riedel likewise appealed to this court, which are addressed in our opinions in these related appeals also handed down this date. See Riedel v. Fenasci, 2018-0539 (La. App. 1st Cir. 12/28/18), --- So.3d ----, 2018 WL 6839564, and Riedel v. Fenasci, 2018-0540 (La. App. 1st Cir. 12/28/18), --- So.3d ----, 2018 WL 6818716.

      In Winston v. Hall, 2017-1097 at p. 5, the maker of the promissory note asserted affirmative defenses of lack of consideration, failure of consideration, fraud, and error or mistake, claiming that he did not recall executing the promissory note and believed that it was either done by another person without his authorization, permission, or consent, or if it was signed by him, that it was done unwittingly and that any such signature was procured by fraud, error or consent. This court found that genuine issues of fact remained as to whether the note was executed by the maker or whether his consent was vitiated pursuant to LSA-C.C. art. 1948. Thus, this court concluded that summary judgment was not appropriate. Cf. American Bank v. Saxena, 553 So.2d at 845-846, where the maker of the promissory note's allegations of fraud, deceit, and misrepresentation were not directed at any invalidity in the confection of the notes or mortgages sued on, but instead were asserted as a separate cause of action in his reconventional demand against the bank for damages involving allegations of wrongdoing grounded in tort, the court found that there was no genuine issue of fact concerning his liability on the notes, and that his reconventional claims for damages could not be urged to off-set the bank's claims on the notes.

      Riedel contended that she had to leave the condo because of "the mold problem" and that she could not afford to pay the note and rent.

      The exhibits Riedel offered in opposition to the motions for summary judgment on the merits included: (1) deposition excerpts of Riedel; (2) Brunet's Home Inspection Authorization and Agreement; (3) photos of Riedel; (4) letter from State Farm dated September 10, 2014; (5) deposition excerpts of Dale Brunet; (6) Brunet's Home Inspection Report; (7) Colonial Inspection Services Mold Inspection Report; (8) Certificate of Mold Analysis; (9) Property Inspection Response Form; (10) photos of the property; (11) the affidavit of Dale Brunet; (12) the affidavit of Julie Hufft; (13) the affidavit of Dr. Kelvin Contreary; (14) the affidavit of Johnny Womack: and (15) the affidavit of Riedel.

      In calling the motions for summary judgment before the court, the trial court referenced the matters as the "the triple motion for summary judgment."


source: Caselaw Access Project

license: Public Domain

text:
    James GUILBEAU and Tammy Guilbeau v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, et al.
    Keith Antoine v. Liberty Mutual Fire Insurance Company, et al.
    Clyde Guillory and Celine Guillory v. Liberty Mutual Fire Insurance Company, et al.
    18-230 18-231 18-232
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
   Richard B. Eason II, Robin B. Cheatham, E. Gregg Barrios, Adams and Reese LLP, 701 Poydras Street, Suite 4500, New Orleans, Louisiana 70139, (504) 581-3234, COUNSEL FOR DEFENDANTS/APPELLANTS: Liberty Mutual Fire Ins. Co., Utility Lines Construction Services, Inc., Morlon Chaddrick

James S. Gates, Morrow, Gates, & Morrow, L.L.C., Post Office Drawer 219, Opelousas, Louisiana 70571, (337) 942-6529, COUNSEL FOR PLAINTIFFS/APPELLEES: James Guilbeau, Tammy Guilbeau, Keith Antoine

Derrick G. Earles, David C. Laborde, Jeff D. Easley, Laborde Earles Law Firm, LLC, 603 North Washington Street, Marksville, Louisiana 71351, (318) 253-3297, COUNSEL FOR PLAINTIFFS/APPELLEES: Clyde Guillory, Celine Guillory

James D. Hollier, NeunerPate, 1001 West Pinhook Road, Suite 200, Post Office Drawer 52828, Lafayette, Louisiana 70505, (337) 237-7000, COUNSEL FOR INTERVENORS/APPELLEES: St. Landry Parish Government, The Parish Government Risk Management Agency Self Insurers Fund

Court composed of Sylvia R. Cooks, Billy H. Ezell, John E. Conery, D. Kent Savoie, and Van H. Kyzar, Judges.

CONERY, Judge.

Plaintiffs James Guilbeau, Keith Antoine, and Clyde Guillory (Plaintiff Employees) claim damages as a result of a collision between the St. Landry Parish maintenance truck they were occupying and a vehicle operated by defendant Morlon Chaddrick, who was employed by defendant, Utility Lines Construction Services, Inc., and insured by defendant Liberty Mutual Fire Insurance Company (Defendants). Plaintiff Tammy Guilbeau is the wife of James Guilbeau, and Plaintiff Celine Guillory is the wife of Clyde Guillory; both claim damages for loss of consortium. St. Landry Parish Government intervened for the reimbursement of worker's compensation benefits it had paid to Plaintiff Employees as a result of the collision. Plaintiffs filed a motion for summary judgment on the issue of liability, which was opposed by all Defendants. The trial court granted partial summary judgment on the issue of liability in favor of the Plaintiffs, finding Defendants 100% at fault. The trial court further ordered the issues of medical causation and damages to be reserved for a trial on the merits. Defendants have timely appealed. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

It is undisputed that on the morning of September 5, 2014, a St. Landry Parish maintenance dump truck was at a complete stop partially blocking the travel lane in Defendant's lane of travel on Jules Lagrange Road in St. Landry Parish. At the time of the accident, the maintenance truck was operated by Plaintiff, Clyde Guillory, and occupied by Plaintiffs, James Guilbeau and Keith Antoine. The maintenance truck was struck from the rear by Defendant, Mr. Chaddrick, who was driving a pick-up truck owned by his employer during the course and scope of his employment with Utility Construction Services, Inc., and insured by Liberty Mutual Fire Insurance Company, all Defendants herein. St. Landry Parish Government and the Parish Government Risk Management Agency Self Insurers Fund filed a petition of intervention to recover the worker's compensation benefits paid to the Plaintiff Employees.

Defendants answered the suit and intervention, asserting that Plaintiff Employees were solely at fault, or in the alternative, were comparatively at fault in causing this accident, and that the parish failed to adequately train and equip the Plaintiff Employees, who obstructed the roadway and failed to warn oncoming motorists lawfully driving on the roadway of the obstruction. Defendants requested a jury trial on all issues.

After completion of discovery, Plaintiffs then filed a motion for partial summary judgment on the issue of liability, which Intervenor adopted, supported by pre-trial depositions of several of the parties and witnesses. Defendants opposed the summary judgment and filed a timely memorandum and depositions in opposition. The trial court made a finding of fact that Defendant Chaddrick was 100% at fault and granted partial summary judgment on the issue of liability in favor of all Plaintiffs and Intervenor against all Defendants, reserving the issues of medical causation and damages for a trial on the merits. Defendants have timely appealed.

ASSIGNMENTS OF ERROR

The Defendants assert the following assignment of error on appeal:

1. The trial court erred in granting Plaintiffs a partial summary judgment on liability and making the factual finding that Defendant Morlon Chaddrick was 100% at fault for causing the vehicular accident in this case because there are numerous issues of material fact as to the negligence and/or comparative fault of the parties in this case.

The Plaintiffs assert the following assignment of error on appeal:

1. Plaintiffs assign as error the failure of the trial court to rule on objections made in its Reply Memorandum before ruling on summary judgment.

LAW AND DISCUSSION

Standard of Review

Appellate courts review motions for summary judgment de novo , using the identical criteria that directs the trial court's consideration of whether summary judgment is appropriate. Dunn v. City of Kenner , 15-1175 (La. 1/27/16), 187 So.3d 404. The reviewing court, therefore, is tasked with determining whether "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.P. art. 966(A)(3).

Louisiana Code of Civil Procedure Article 966(D) further provides:

(1) The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
(2) The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum.

In Roy v. Kyrles, Inc. , 07-1605, p. 4 (La.App. 3 Cir. 5/14/08), 983 So.2d 975, 978, a panel of our court held that the legislature further clarified the burden of proof in enacting La.Code Civ.P. art. 966(C)(2) (now 966(D)(1)(2) ) and stated:

This amendment parallels the language of Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The amended article places the initial burden of proof on the mover of the motion for summary judgment. If the mover meets this initial burden, the burden of proof then shifts to the nonmoving party that has the burden of proof on this particular issue at trial. This nonmoving party then must put forth evidence that shows he or she will be able to meet that burden at trial. If the nonmoving party cannot, then the motion for summary judgment should be granted. Mar[a]ist & Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6.8 (1999).

The recent supreme court case of Maggio v. Parker , 17-1112, p. 4 (La. 6/27/18), 250 So.3d 874, 878, defined the court's role in the determination of a motion for summary judgment and stated:

In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor. Hines v. Garrett , 2004-0806 (La. 6/25/04), 876 So.2d 764, 765. A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Id. at 765-66.

All facts and inferences of fact must be resolved in favor of the non-moving party. Bowdoin v. WHC Maint. Services, Inc. , 17-150 (La.App. 3 Cir. 10/25/17), 230 So.3d 232.

DEFENDANTS' ASSIGNMENT OF ERROR

In their sole assignment of error on appeal, Defendants' claim that the trial court erred in granting partial summary judgment to Plaintiffs on the issue of liability by improperly making the factual finding that Mr. Chaddrick was 100% at fault for causing the vehicular accident. Defendants claim that there are genuine issues of material fact as to the negligence and/or comparative fault of the parties.

Liability

Louisiana Civil Code Article 2315 requires a plaintiff to prove five elements in order to impose liability under general negligence principles: (1) that the defendant had a duty to conform his conduct to a specific standard of care; 2) that the defendant failed to do so; 3) that the substandard conduct was a cause-in-fact of the plaintiff's injuries; 4) that the conduct was a legal cause of the plaintiff's injuries; and 5) actual damages. Ebarb v. Matlock , 46,243 (La.App. 2 Cir. 5/18/11), 69 So.3d 516, writ denied , 11-1272 (La. 9/23/11), 69 So.3d 1164.

Presumption of Fault

In cases where there is a rear-end collision, La.R.S. 32:81(A) provides that "[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway." In such a case, a following motorist is presumed to have breached this statutory duty when a rear-end collision occurs. Garcia v. Stalsby, 11-350 (La.App. 3 Cir. 12/14/11), 78 So.3d 873, writ denied, 12-422 (La. 4/9/12), 85 So.3d 703. It is undisputed that Mr. Chaddrick's vehicle collided with the rear of Plaintiffs' vehicle, though he was not following Plaintiff's vehicle, as it was stopped partially on the roadway. The Plaintiff Employees intended to patch the roadway but had remained in the truck for up to three minutes prior to the collision. No cones, signs, flagmen or warnings whatsoever had been placed on the roadway to warn motorists of the partial lane blockage.

Defendants argue that in this case there is at least a genuine issue of material fact that the "preceding vehicle," the parish dump truck, was negligent in its operation and failure to warn by the employees, thus creating a hazard which could not be avoided by a prudent operator, and that St. Landry Parish Intervenor was partially at fault for failing to properly train and equip the parish work crew.

In Graffia v. Louisiana Farm Bureau Casualty Insurance Co. , 08-1480, p. 7 (La.App. 1 Cir. 2/13/09), 6 So.3d 270, 274, a panel of the first circuit provided, "notwithstanding the presumption of negligence [in a rear-end collision case], a favored motorist can still be assessed with comparative fault if his or her substandard conduct contributed to the cause of the accident."

Defendants assert that in this case, comparative fault should also be applied to Plaintiffs' actions as it is undisputed that the parish dump truck was parked partially in the roadway, thereby obstructing Mr. Chaddrick's lane of travel, and Plaintiff Employees failed to utilize any safety procedures such as cones, eye-level flashers, signs, or a flagman to warn motorists of the upcoming obstruction.

Statutory Duty Not To Obstruct A Roadway

It is undisputed that the parish dump truck was partially parked on the roadway at the time of the accident obstructing Defendant's lawful lane of travel. In the deposition testimony of the investigating officer David Halphen, he testified about the position of the vehicles as evidenced by pictures taken after the accident and stated:

Q. Does it show the position of the parish road maintenance truck being partially on the shoulder of the roadway and partially in the roadway?
A. I mean, there was no shoulder, technical shoulder, on this road, other than this area. I mean, I would consider this on the roadway.
Q. So other than maybe the two tires in the little grass area, most of the truck is in the roadway; is that right?
A. Correct.

Louisiana Revised Statutes 32:141 (emphasis added) provides:

A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.

The Plaintiffs in oral argument claim that La.R.S. 32:141 only applies to "highways." They argue that this accident took place on a parish road and therefore the statute is not applicable. However, La.R.S. 32.1 (emphasis added) provides the definitions applicable to Chapter 32, and states, "(25) 'Highway ' means the entire width between the boundary lines of every way or place of whatever nature publicly maintained and open to the use of the public for the purpose of vehicular travel, including bridges, causeways, tunnels and ferries; synonymous with the word 'street'." Louisiana Revised Statutes 32.1 (emphasis added) states, "(65) 'Shoulder ' means the portion of the highway contiguous with the roadway for accommodation of stopped vehicles, for emergency use, pedestrian use, mobility aid use, bicycle use, and for lateral support of base and surface."

In the second circuit case of Samuel v. Vicknair , 31,049, p. 1 (La.App. 2 Cir. 9/23/98), 718 So.2d 634, 635, the accident at issue took place "near the intersection of Hamilton Road and Highway 72 in Bossier City, Louisiana." However, the actual accident occurred on the two-laned Hamilton Road when the driver stopped to let out a passenger. The second circuit found that La.R.S. 32:141 was applicable to the case and made no distinction that Hamilton Road was not a "state highway." We therefore find that the argument by the Plaintiffs that La.R.S. 32:141 does not apply to be without merit.

The Louisiana Supreme Court in Laird v. Travelers Ins. Co. , 263 La. 199, 267 So.2d 714, 718 (1972) determined that La.R.S. 32:141(A)"is a highway safety measure designed to keep open the traffic arteries." The Laird court further noted that it has been "held as a matter of court policy that this statute is designed to protect against the risk that a driver, whether cautious or inattentive, would collide with a stationary vehicle." Id. "Whether a duty is owed is a question of law." Mundy v. Dep't of Health & Human Res. , 620 So.2d 811, 813 (La.1993) (citing Faucheaux v. Terrebonne Consol. Gov't, 615 So.2d 289 (La.1993) ). Therefore, the statute creates a duty on the part of the Plaintiff Employees. "Whether the defendant breached that duty represents a factual determination. The determination of whether the defendant's conduct was a cause-in-fact of the plaintiff's injuries is also a question of fact." Journet v. Mouton , 12-811, p. 5 (La.App. 3 Cir. 2/6/13), 107 So.3d 829, 832, writ denied , 13-0522 (La. 4/12/13), 111 So.3d 1010 (citations omitted).

Plaintiff Employees also claim that this large dump truck was plainly visible as it was stopped on the roadway with its flashing hazard lights on, thus satisfying any alleged obligations to have a "clear view" of the "obstruction"

Defendant, Mr. Chaddrick, testified in his deposition that he was temporally blinded by glare on his windshield from the sun shortly after coming around a curve on Jules Lagrange Road when the sun unexpectedly came into his vision from behind a pine tree: "[I]t got bright all of a sudden - - - I didn't have any warning or anything. I just hit the back of the truck". He stated that there were no signalmen, no cones, and he saw no visible flashers or anything else warning him of the obstruction in his lane of travel until the moment of impact.

Deposition testimony of the Plaintiff Employees of St. Landry Parish introduced for purposes of summary judgment reveals that at the time of the accident, the Plaintiff Employees admitted that the parish dump truck was partially blocking Jules Lagrange Road in Mr. Chaddrick's travel lane for "up to three minutes" before they were hit by Mr. Chaddrick. The Plaintiff Employees claimed that flashers on the dump truck were under the rear bumper and working, but admitted the flashers were not at eye level. Furthermore, the Plaintiff Employees testified by deposition that they did not have any safety equipment in the truck, such as warning cones or signs, nor did they plan to use a flagman to direct traffic while they worked. There were no signs or signals whatsoever, much less within "a distance of two hundred feet in each direction" as required by La.R.S. 32:141. It is undisputed that the Plaintiff Employees had worked on this exact roadway the day before and therefore should have been aware of the road conditions and their statutory duty to properly sign and signal motorists traveling on the roadway pursuant to La.R.S. 32:141, as well as their legal duty to do so pursuant to general negligence principles.

Further, Defendants assert that Plaintiff Intervenor St. Landry Parish Government should also be cast with comparative fault as the employers of the Plaintiff Employees for their failure to properly train their employees and provide them with proper safety equipment and warning devices. Louisiana Civil Code Article 2320 provides in pertinent part:

Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
....
In the above cases, responsibility only attaches, when the masters or employers ... might have prevented the act which caused the damage, and have not done it.

When the alleged fault of a motorist and the alleged fault of a governing body responsible for refraining from blocking the travel portion of a highway and for warning motorists of unreasonably dangerous road conditions combine to produce an accident, comparative fault is applicable. Gadman v. State ex rel. Dep't of Transp. & Dev. , 493 So.2d 661 (La.App. 2 Cir.), amended in part , 497 So.2d 1001 (La.1986).

The Plaintiff Employees admitted through their deposition testimony that while safety meetings had happened in the past, it was not their usual practice to have cones, flags, flagmen or other safety precautions to warn motorists when they parked their parish dump truck partially blocking a travel lane on the roads they were maintaining. Further, the Plaintiff Employees admitted in deposition testimony that the use of a flagman on work sites occurred only "when possible." According to the deposition testimony of the Plaintiff Employees, the main safety precautions taken were the use of safety vests and flashers on the truck, which in this case were located beneath the rear bumper of the dump truck. If the workers did have bright safety vests, Defendant could not have seen them as the Plaintiff Employees were still in the truck at the time of the collision. Defendant Chaddrick testified that he did not see any "flashers" on the dump truck and because the sun temporarily blinded him, he did not see that the dump truck was partially blocking his travel lane until it was too late to avoid the collision.

Pictures introduced in support of and in opposition to the motion for summary judgment do show that the road on which defendant had traveled was straight for a significant distance before he encountered the parked truck on the roadway. However, those same pictures also show that the truck was parked at the beginning of a sharp curve, and that area was shaded by some trees. At the very least, there is a question of fact as to what defendant could have seen or perceived as he approached the truck. His assertion that he was partially blinded by the sun which suddenly appeared behind the trees is corroborated by the pictures as well.

In fact, defendant's testimony was that after he suddenly encountered the sun's glare, he immediately slowed his vehicle to fifteen (15) miles per hour. Therefore, the issues of his vehicle's position and speed prior to the sun blinding him and whether he could actually see and perceive that the truck was stopped on the road before the sun blinded him are all factual questions best resolved at a trial on the merits.

Trial Court's Reasons For Ruling

The trial court stated the following oral reasons for ruling on the record at the hearing on the motion for summary judgment:

Here's what I see, first of all, I don't think there's any dispute that there is a presumption that comes into play when a following motorist rear-ends another motorist. The law says so. The presumption then shifts the burden to the following motorist to prove that either he was not at fault, or that he wasn't a hundred percent at fault. So that's where I start when we get there. I think that that presumption does come into play. Now, in addition, I go and I look, is that any material fact in dispute relative to overcoming that burden, and there's some great arguments, but I can't get past one simple thing. It is clear, from all the evidence, that the following motorist, Mr. Chaddrick, was blinded by the sun. He could not see a dump truck. Now, to argue that there were inadequate warnings that the dump truck was there, is great argument. I don't have anything from a [statutory] standpoint, that there was any specific requirement in the law that, other than the flasher, something else required that would then shift the burden back to say they didn't comply. But more important than that is I cannot get around the fact that there is no evidence, there is speculation[.]

The trial court then relied on the case of Warren v. Hunter Truck Lines, Inc. , 289 So.2d 257 (La.App. 1 Cir. 1973), writ denied , 290 So.2d 910 (La.1974), and continued, "[T]o quote the Warren case, 'To hold that warning devices might have avoided the accident would be sheer speculation.' That's what it says in the Warren case. That's what we have here."

As in this case, the statutory interpretation of both La.R.S. 32:81 and 32:141 was at issue in Warren , 289 So.2d 257. However, the Warren case was not decided on a motion for summary judgment, rather the ruling was made by the trial court after a full trial on the merits , where the trial court had the obligation to and did make factual findings and credibility determinations before ruling in favor of the plaintiff. Prior to its ruling, the trial court in Warren specifically stated, "It is elementary that cases of this nature involve purely factual determinations which must be decided in the light of the circumstances peculiar to each case. " Warren , 289 So.2d at 260. (Emphasis added.)

As in this case, in Addison v. Travelers Ins. Co. , 281 So.2d 805 (La.App. 1 Cir. 1973), writ denied , 283 So.2d 498, 499, 502 (La.1973), the oncoming driver of a vehicle claimed she couldn't see the parked road maintenance vehicle because the sun was in her eyes. The Highway Department was found to be negligent, proximately causing the collision when the oncoming motorist drove her vehicle into the parked Highway Department road maintenance vehicle. Importantly, that case was also decided after a full trial on the merits where factual findings and credibility determinations could properly be made by the fact finder. See also State Farm Mut. Auto Ins. Co. v. S. Cent. Bell Tel. Co. , 359 So.2d 1318 (La.App. 4 Cir. 1978).

In Bowdoin , 230 So.3d at 236 (alteration in original), this court emphasized:

When considering a motion for summary judgment, the court cannot "consider the merits, make credibility determinations, evaluate testimony[,] or weigh evidence." Prop. Ins. Ass'n of La. v. Theriot, 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014 (quoting Suire v. Lafayette City-Parish Consol. Gov't , 04-1459, p. 11 (La. 4/12/05), 907 So.2d 37, 48 ). Moreover, although "summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor." Willis v. Medders , 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

In the recent case of Boyance v. United Fire and Casualty Co. , 17-876 (La.App. 3 Cir. 3/28/18), 242 So.3d 745, rev'd, 18-866 (La. 10/8/18), 253 So.3d 1274, a panel of our court, with one judge dissenting, affirmed a summary judgment involving a three-vehicle accident on I-10, finding that the initial rear ending vehicle was 100% at fault for the collision and resulting damages. In that case, plaintiff had abruptly slowed her vehicle in response to the co-defendant eighteen-wheeler driver merging from a highway weigh station onto her lane of travel. She was rear ended and then propelled into the merging vehicle by the following truck. The majority found no genuine issue of material fact and affirmed the trial court's decision exonerating the merging driver of the eighteen-wheeler and placing 100% of the fault on the defendant rear ending driver. The dissenting judge wrote a comprehensive opinion pointing out that such a finding was improper on summary judgment as it necessarily involved resolving issues of credibility and findings of fact inappropriate for summary judgment.

The Louisiana Supreme Court in Boyance v. United Fire and Cas. Co. , 18-886, p. 1 (La. 10/8/18), 253 So.3d 1274, 1274, granted the writ and reversed the majority, stating succinctly: "Writ granted. Contested issues of material fact remain. The summary judgment ... is reversed and the matter is remanded for further proceedings."

Because allocation of fault is a factual finding, where reasonable minds can differ about the allocation of fault to each party, summary judgment is inappropriate and comparative fault applies. Berthiaume v. Gros , 15-116 (La.App. 3 Cir. 6/3/15), 165 So.3d 1275 ; see also Slaton v. Stein , 93-1253 (La.App. 3 Cir. 5/4/94), 640 So.2d 582.

Similarly, in this case, there are contested issues of fact and inferences from those facts involved in this case such that summary judgment is not appropriate. Plainly and simply, this is not a summary judgment case.

We find that the trial court erred in making factual findings and credibility determinations at this partial summary judgment hearing on the issue of liability. We find that there are genuine issues of material fact as to whether the Plaintiff Employees' actions violated La.R.S. 32:141, whether they were negligent, and whether their failure to properly warn motorists or employ any safety measures was a contributing cause of the accident, along with the alleged fault of the St. Landry Parish Government for failing to properly equip and train its employees. Accordingly, we reverse the trial court's grant of the motion for partial summary judgment finding Defendants 100% at fault and remand for further proceedings consistent with this opinion and the law.

PLAINTIFF EMPLOYEES' ASSIGNMENT OF ERROR

In their sole assignment of error on appeal, Plaintiff Employees assert that the trial court erred when it failed to rule on the objection to the admission into evidence of the depositions of other parish workers by the Defendants.

Louisiana Code of Civil Procedure Article 966(D)(2) provides:

The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.

This court's reversal of the trial court's partial summary judgment on the issue of liability renders moot the Plaintiff Employees' assignment of error, as any question as to the admissibility of the workers' depositions may now be addressed by the trial court at the trial on the merits.

CONCLUSION

For the foregoing reasons, we find that the trial court erred in granting partial summary judgment on the issue of liability in favor of the Plaintiffs James Guilbeau, Tammy Guilbeau, Keith Antoine, Clyde Guillory, Celine Guillory and the Intervenor St. Landry Parish Government. We reverse the ruling of the trial court and remand for further proceedings. All costs of this appeal are assessed to the Plaintiffs James Guilbeau, Tammy Guilbeau, Keith Antoine, Clyde Guillory and Celine Guillory and the Intervenor, St. Landry Parish Government.

REVERSED AND REMANDED.

Cooks, J., dissents.

      Correspondence received by the Clerk of Court's Office from counsel for Plaintiff Clyde Guillory and Plaintiff Keith Antoine indicates that those parties have reached settlements in their respective cases. However, the court has received no formal documentation of such a settlement nor any related motions for dismissal. Accordingly, this opinion reflects consideration of the three consolidated cases.


author: SAVOIE, Judge.

text:
    Brandon MATT and Cathy West v. SAFEWAY INSURANCE COMPANY OF LOUISIANA, et al.
    CA 18-442
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2019
    Holli K. Yandle, Tracy L. Oakley, Angelique P. Provenzano-Walgamotte, W. Brett Cain, Michael W. Landry, 400 E. Kaliste Saloom Rd., Ste. 4300 (70508), P. O. Box 92807, Lafayette, LA 70509, (877) 323-8040, COUNSEL FOR DEFENDANT/APPELLANT: Safeway Insurance Company of Louisiana.
    Taylor J. Bassett, Jeffrey Michael Bassett, Kathleen E. Ryan, Morrow, Morrow, Ryan, Bassett & Haik, P.O. Drawer 1787, Opelousas, LA 70571-1787, (337) 948-4483, COUNSEL FOR PLAINTIFFS/APPELLEES: Brandon Matt, Cathy West.
    Gregory John Laborde, Amy E. Boudreaux, Daigle Rayburn LLC, P.O. Box 3667, Lafayette, LA 70502-3667, (337) 234-7000, COUNSEL FOR DEFENDANT/APPELLEE: Justin Semien.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

Safeway Insurance Company ("Safeway") appeals the trial court's judgment rendered in favor of Plaintiffs for damages caused by Justin Semien in connection with an auto accident that occurred on February 27, 2016. It specifically challenges the trial court's finding that an insurance policy issued to Demetrius Rubin by Safeway provided liability coverage for the subject accident. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 13, 2015, Safeway issued a policy of automobile insurance to Demetrius Rubin and his wife Dedra that provided coverage with respect to a 2002 Ford Expedition. The policy had a six-month term. During the first six months, a 1997 Buick LeSabre was added and then deleted from the policy, and a 2000 Lincoln Town Car was also added. The policy was renewed on February 13, 2016, and remained effective through August 13, 2016.

On February 16, 2016, a 1993 Lincoln Town Car was added to the Rubins' policy. Subsequently, on February 26, 2016, Defendant Justin Semien approached Mr. Rubin and/or Mr. Rubin's son, Demetrius Coleman, to purchase the 1993 Town Car. Late afternoon on Friday, February 26, 2016, Mr. Semien paid Mr. Rubin and/or Mr. Coleman $ 2,000 in cash for the vehicle and indicated he would pay an additional $ 300 at a later date. The parties dispute whether the transaction constituted a completed sale of the vehicle and whether it was Mr. Rubin or Mr. Coleman who owned the 1993 Town Car at the time of the transaction. According to Mr. Rubin, the transaction was not yet completed because Mr. Semien still needed to transfer the title and plates to his name, register the vehicle, and pay the remaining $ 300 balance. Mr. Rubin further noted that because those events had not yet taken place, he had authority to tell Mr. Semien whether he could drive the vehicle that weekend. Mr. Rubin ultimately gave Mr. Semien the keys to the vehicle and allowed him to leave with it.

The following day, February 27, 2016, Mr. Semien drove the 1993 Town Car and was involved in an auto accident with Plaintiffs Brandon Matt and Cathy West. On February 29, 2016, following the Rubins' call to their insurance agent, the 1993 Town Car was deleted from the policy, as reflected by a policy endorsement dated the same day. Following the deletion of the 1993 Town Car from the policy, the policy covered only the Rubins' 2000 Lincoln Town Car.

On April 14, 2016, Mr. Matt and Ms. West filed a Petition against Mr. Semien and Safeway seeking damages arising out of the February 27, 2016 auto accident. Safeway filed an Answer on May 16, 2016. Therein, it denied coverage, alleging that while it had previously issued a policy to Mr. Rubin covering the 1993 Town Car, Mr. Rubin "did not have an insurable interest at the time of the accident" because the vehicle had been sold to Mr. Semien on February 26, 2016. Safeway also alleged that coverage was not available under the policy because Mr. Rubin failed to seek or obtain consent from Safeway to transfer or assign his interest under the policy to Mr. Semien, as required by the policy.

The Safeway policy issued to Mr. Rubin was renewed again in August 2016 for an additional six-month term through February 2017. At the time of renewal, it provided coverage only with respect to the Rubins' 2000 Lincoln Town Car. Pursuant to policy endorsements, on January 12, 2017, a 1997 Buick LeSabre was added to the policy, and on January 17, 2017, it was deleted from the policy.

On November 7, 2016, Safeway filed a Supplemental and Amended Answer, asserting an additional coverage defense based on alleged material misrepresentations made in connection with Mr. Rubin acquiring insurance from Safeway. Specifically, Safeway asserted that Mr. Rubin intentionally failed to disclose that his son, Demetrius Coleman, was an unlicensed resident of Mr. Rubin's household and a driver of the vehicles insured under the policy. In addition, Safeway alleged that Mr. Rubin misrepresented on the endorsement application that sought to add the 1993 Town Car to the policy that he owned the Town Car, when it was actually Mr. Coleman who was the owner. Therefore, according to Safeway, the policy issued to Mr. Rubin should be considered void ab initio because of the material misrepresentations made by Mr. Rubin.

The Safeway policy was renewed again on February 16, 2017, for an additional six-month term through August 16, 2017. At the time, it provided coverage for the 2000 Lincoln Town Car. Endorsements to the policy reflect that a 1993 Buick Roadmaster was added on March 6, 2017, and then deleted on March 20, 2017. Also in March 2017, the policy was set not to renew at the end of the term. Applicable premiums were collected through the end of the policy, and no premium payments have been returned to the Rubins.

A bench trial was held March 26, 2018. The trial judge ultimately rendered a $ 17,250.15 judgment against Safeway and Mr. Semien, finding Mr. Semien solely at fault and that the Safeway policy provided coverage to the 1993 Town Car at the time of the accident. In its reasons for ruling, the trial judge found that Safeway had waived the coverage defenses it asserted, noting

[T]he agent was aware at that time that there was another gentlemen named Demetrius Coleman who may have also gone by Demetrius Rubin ... but the real Mr. Rubin signed that acknowledging that there was at least a Demetrius Coleman in his household. And even after that they issued and delivered the policy, accepted the premium. This accident happened, they continued to issue the policy, continued to accept premiums and continued to renew it even despite what obviously had to be a red flag with the number of vehicles that were added and deleted throughout the course of the policy ....
I'll note too ... not even two months after the accident there was a lawsuit. Claims should have known this was in litigation, claims should have had an opportunity to investigate this thing and if they had not discovered before that there were potentially ... some problems with the policy ... they certainly should have known a lot earlier in time than 2017, when they ultimately chose not to renew the policy.

Defendant Safeway appeals. It states the following as assignments of error:

1. The trial court committed manifest error when it concluded that Safeway Insurance Company of Louisiana waived all of its defenses by failing to non-renew or cancel the policy quickly enough.
2. The trial court committed manifest error when it failed to find that there was no insurable interest in the 1993 Lincoln Towncar once it was purchased by Justin Semien on the day prior to the accident.
3. The trial court committed manifest error when it failed to find that there was no assignment of interest in the Safeway Insurance Company of Louisiana policy to Justin Semien when Justin Semien purchased the 1993 Lincoln Towncar.
4. The trial court committed manifest error when it failed to find that Demetrius RUBIN misrepresented material facts at the time of the application for the Safeway policy and at the time the 1993 Lincoln Towncar was added to the Safeway policy.

STANDARD OF REVIEW

As stated by the Louisiana Supreme Court in Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989) (internal citations omitted):

It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong.

We further keep in the mind the following principles when reviewing the insurance policy at issue:

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. The judiciary's role in interpreting insurance contracts is to ascertain the common intent of the parties to the contract.
....
Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer's obligation are strictly construed against the insurer ....
If the policy wording at issue is clear and unambiguously expresses the parties'
intent, the insurance contract must be enforced as written. Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy's provisions are couched in unambiguous terms.

Cadwallader v. Allstate Ins. Co. , 02-1637, pp. 3-4 (La. 6/27/03), 848 So.2d 577, 580 (internal citations omitted).

ANALYSIS

Safeway challenges the trial court's finding that it waived its coverage defenses and urges us to find that the policy at issue does not provide liability coverage for damages arising out of Mr. Semien's use of the 1993 Town Car because (1) Mr. Rubin no longer had an insurable interest at the time of the accident because he had sold the 1993 Town Car to Mr. Semien the day before; (2) Mr. Rubin did not obtain consent from Safeway to assign his interest in the policy; and (3) Mr. Rubin made material misrepresentations to Safeway in the course of applying for coverage.

Insurable Interest:

On appeal, Safeway argues that, regardless of the terms of its policy, liability coverage is not available because, at the time of the accident, Mr. Rubin did not have an insurable interest in the vehicle as required by La.R.S. 22:853 because he had sold it to Mr. Semien. Louisiana Revised Statutes 22:853, entitled "Insurable interest required, property insurances," states as follows (emphasis added):

A. No contract of insurance on property or of any interest therein or arising therefrom shall be enforceable except for the benefit of persons having an insurable interest in the things insured.
B. "Insurable interest" as used in this Chapter means any lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage.

Further relying on Luke v. Theriot , 195 So.2d 685 (La.App. 1 Cir. 1967), Safeway argues that Mr. Rubin did not have the requisite insurable interest in the 1993 Town Car as contemplated by La.R.S. 22:853 because the only relationship between Mr. Rubin and Mr. Semien was that of buyer and seller.

However, as noted by Plaintiffs-Appellees, in 1978, the Louisiana Supreme Court expressly held that the insurable interest required by then-applicable La.R.S. 22:614, which is the predecessor to the current La.R.S. 22:853, "relates only to property insurance ... [and] therefore has no relevance in the case at bar." DiGerolamo v. Liberty Mut. Ins. Co., 364 So.2d 939, 941 (La. 1978). Therefore, Safeway's argument fails given the inapplicability of the statute it relies upon.

Moreover, the Louisiana Supreme Court has recognized that there is no controlling Louisiana jurisprudence or applicable statutes that impose an insurable interest requirement for liability policies. Id. ; Cousin v. Page , 372 So.2d 1231 (La. 1979). Safeway has not argued otherwise in its brief, and we are not inclined to impose an insurable interest requirement for an insured to obtain or maintain liability insurance, absent specific language in the policy itself. See United Fire and Cas. Co. v. Reeder , 9 F.3d 15 (5th Cir. 1993).

The Safeway policy at issue provides that, with respect to "owned automobiles," liability coverage is afforded to "persons insured," which includes "[t]he named insured" and "any other person using such automobile to whom the named insured has given the expressed or implied permission, provided the use is within the scope of such permission." The policy further defines "owned automobiles" as an "automobile described in this policy " (emphasis added). The 1993 Town Car was described on an endorsement to the policy that was effective at the time of the accident. Safeway does not argue that Mr. Semien should not be considered as a "person[ ] insured" under the policy and does not point to any other policy provisions that would exclude liability coverage for an "automobile described in the policy" if that automobile is sold to someone else. Therefore, we conclude that the express terms of the policy at issue provide liability coverage for the subject accident.

We further note that Safeway collected premiums for coverage of the subject Town Car from the time it was added to the policy through the time it was deleted on February 29, 2016. Safeway's failure to provide a refund of any premiums paid for the subject Town Car from the date of the purported sale through the date the vehicle was deleted from the policy is inconsistent with its position that coverage on the subject Town Car automatically terminated on the date of the purported sale.

In addition, Rhonda Marshall, an underwriting supervisor for Safeway, testified at trial that for an insured to add a vehicle to a policy, he is required to provide proof of ownership to the agent such as a bill of sale, a buyer's order, a purchase agreement, notarized title, or registration. However, for an insured to delete a vehicle from his policy, all that is required is an endorsement application, unless the insured seeks to backdate the effective date of the deletion. Ms. Marshall explained that an insured's request to backdate the deletion of a vehicle from a policy must be processed internally by Safeway's underwriting department, rather than the agent, and Safeway requires proof supporting the backdated deletion such as a bill of sale, cancelled plates, or proof that the vehicle was totaled in an accident. There is evidence in the record suggesting that as of February 26, 2016, the date of the purported sale, the title had not been transferred, the bill of sale had not been completed, the vehicle had not been registered in Mr. Semien's name, and Mr. Semien had not obtained a license plate for the vehicle. It is unclear whether this would have been sufficient had Mr. Rubin or his agent sought to backdate the deletion request.

Ms. Marshall also testified that Safeway became aware of the alleged sale on Monday, February 29, 2016, and thereafter it took the position that coverage was no longer provided as of the sale to Mr. Semien on February 26, 2016. When questioned about why the vehicle still appeared on the declarations page as of February 27, 2016, the date of the accident, despite Safeway's coverage position, Ms. Marshall testified:

Mr. Rubin didn't come in to remove the vehicle until the Monday. Based on the information that I saw, it appears that the agent, at all times, did a loss notice, filled out a claims form, made notes in a file that it was brought to our attention that the vehicle was sold Friday afternoon. And she did the request to delete the vehicle on Monday and completed a loss notice to send to Safeway Insurance Company.

The Safeway agent's failure to seek a backdated deletion after purportedly learning of the February 26, 2016 sale, and Safeway's failure to backdate the deletion of the subject Town Car or issue a refund of premium payments made for coverage are contrary to Safeway's position that coverage automatically terminated on February 26, 2016. Therefore, we further find that Safeway's conduct constitutes a waiver of any coverage defense that may have existed based upon the purported sale to Mr. Semien. See Tate v. Charles Aguillard Ins. & Real Estate, Inc. , 508 So.2d 1371 (La. 1987). Safeway's arguments on appeal that coverage is not available because Mr. Rubin had no insurable interest in the subject Town Car lack merit.

Assignment of Interest in the Policy:

On appeal, Safeway also argues that the policy does not afford liability coverage for the accident at issue because Mr. Rubin did not obtain consent from Safeway as required by the following provision in the "Conditions" section of the policy:

15. Assignment. Assignment of interest under this policy shall not bind the Company until its consent is endorsed hereon; if, however, the insured named in the declarations, or his spouse if a resident of the same household shall die, this policy shall cover (1) the survivor as the named insured, (2) his legal representative as the named insured but only while acting with the scope of his duties as such, (3) any person having proper temporary custody of an owned automobile, as an insured, until the appointment and qualification of such legal representative, and (4) under Division 1 of Part III any person who was a relative at the time of such death."

This argument lacks merit as there is no basis for us to find that Mr. Rubin assigned any interest in the policy to Mr. Semien. Safeway does not refer to any evidence in the record suggesting that Mr. Rubin assigned, or attempted to assign, his own interest as policyholder or insured under the policy to Mr. Semien. Rather, Mr. Semien, as a user of the 1993 Town Car described in the policy, is, on his own, considered an insured under the express terms of the policy, and Safeway does not suggest otherwise on appeal.

Material Misrepresentations

Safeway's final defense to coverage is based on alleged material misrepresentations made by Mr. Rubin when initially acquiring automobile insurance and with adding the 1993 Town Car to the policy. Safeway argues that Mr. Rubin's son, Mr. Coleman, purchased the 1993 Town Car and that he was the true owner at the time it was added to Mr. Rubin's policy, despite what was reflected on Mr. Rubin's endorsement application. Safeway also notes Mr. Rubin's testimony suggesting that all of Mr. Coleman's vehicles were put into Mr. Rubin's name because the insurance premiums would be lower. In addition, Safeway argues that Mr. Rubin intentionally failed to disclose Mr. Coleman as a resident of his household when he initially obtained the insurance policy in 2015.

"As an initial matter, the specific provisions of the insurance agreement must be examined for language pertaining to material misrepresentations." Green v. Brown , 51,152, p. 7 (La.App. 2 Cir. 2/15/17), 212 So.3d 718, 722. The "Conditions" section of the Safeway policy at issue states in part as follows:

16. Misrepresentation. This policy shall be voidable, at our option, if the named insured or any other insured has, with an intent to deceive, conceal or misrepresent any material fact concerning any matter regarding completion of this application.

Therefore, under the terms of the policy, an insured's material misrepresentations do not render the policy void ab initio, but rather merely provide Safeway with the option to void the policy at its discretion. When a policy is rescinded, or voided, "it is considered never to have been in effect and thus there would [be] no coverage at all." Vest v. Richardson , 253 So.2d 97, 101 (La.App. 4 Cir. 1971).

The trial court found that Safeway had waived its material misrepresentation defenses to coverage. Therefore, we will consider whether the record contains sufficient evidence to support a finding that Safeway waived its option to void the policy and deny coverage. See Green , 212 So.3d 718.

Waiver is usually defined as the intentional relinquishment of a known power or privilege. Waiver occurs when there is an existing right, a knowledge of its existence and an actual intention to relinquish it, or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished.
....
[W]aiver may apply to any provision of an insurance contract under which the insurer knowingly and voluntarily elects to relinquish his right, power or privilege to avoid liability, even though the effect may bring within coverage risks originally excluded or not covered. Of course, reliable proof of such a knowing and voluntary waiver is necessary and the burden of producing it, as in the proof of obligations generally, falls on the party who demands performance.

Tate, 508 So.2d at 1373-1375 (internal citations omitted).

Safeway's underwriting supervisor, Ms. Marshall, testified at trial that she has "never known [Safeway] to actually void a policy in Louisiana, like ... back to inception." Rather, according to Ms. Marshall, if Safeway learns of material misrepresentations, it will either cancel the policy if it is close enough to the policy's inception date, or it will set the policy to not renew, which it calls "DNR," so that the policy will expire at the end of the term.

Safeway notes on appeal that it first learned of the alleged material misrepresentations following the October 3, 2016 deposition of Mr. Rubin. Thereafter, Safeway amended its Answer on November 7, 2016, to assert material misrepresentation defenses. Safeway also notes that Mr. Coleman's deposition taken in December 2016 confirmed the alleged misrepresentations made by Mr. Rubin. Despite this knowledge, however, Safeway did not set the policy to "DNR," and in fact, renewed the policy in February 2017. We also note that in January 2017, Safeway approved the Rubins' endorsement applications to add another vehicle to the policy and then delete that same vehicle at a later date. It was not until March 2017 that Safeway set the policy to not renew at the end of the term, and Safeway continued to collect premiums from the Rubins throughout the life of the policy.

We conclude that Safeway's renewal of the policy in February 2017, despite its knowledge of the alleged misrepresentations as of October 3, 2016, as well as its continuous collection of premiums through the end of the term, are sufficient to support the trial court's finding that Safeway waived its option to void the policy for material misrepresentations.

CONCLUSION

For the reasons stated above, the trial court's judgment is affirmed. Costs of this appeal are assessed to Defendant-Appellant, Safeway Insurance Company of Louisiana.

AFFIRMED.