The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
20-541
MITCHELL BAUDOIN
VERSUS
AMERICAN GLASS AND MIRROR WORKS, INC., ET AL.
**********
APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 86,404, DIV. B
HONORABLE SUZANNE DEMAHY, DISTRICT JUDGE
**********
JONATHAN W. PERRY
JUDGE
**********
Court composed of D. Kent Savoie, Jonathan W. Perry, and J. Larry Vidrine*,
Judges.
AFFIRMED.
___________________
*Honorable J. Larry Vidrine participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.
Charles Brandt
Brandt & Sherman, L.L.P.
111 Mercury Street
Lafayette, Louisiana 70503
(337) 800-4000
COUNSEL FOR PLAINTIFF/APPELLANT:
Mitchell Baudoin
Sean P. Mount
Bryce M. Addison
Deutsch Kerrigan, L.L.P.
Magazine Street
New Orleans, Louisiana 70130
(504) 581-5141
COUNSEL FOR DEFENDANT/APPELLEE:
Accident Insurance Company
Charles Goudeau
130 Demas Drive
Lafayette, Louisiana 70506
PRO SE DEFENDANT
Brent Maggio, Esq.
Allen & Gooch
Two Lakeway Center, Suite 630
3850 N. Causeway Blvd.
Metairie, Louisiana 70002
(504) 836-5260
COUNSEL FOR DEFENDANT:
Charles Goudeau d/b/a
Charles Goudeau General Contractor
Michael W. Campbell
Lauren Camel Begneaud
Caffery, Oubre, Campbell & Garrison, L.L.P.
100 E. Vermilion, Suite 201
Lafayette, Louisiana 70501
(337) 232-6581
COUNSEL FOR DEFENDANTS:
American Glass and Mirror Works, Inc.,
American Windshield Replacement and Repair, Inc., and
National Trust Insurance Company
M. Joey Bernard
Burglass & Tankersley, LLC
5213 Airline Drive
Metairie, Louisiana 70001-5602
(504) 836-0422
COUNSEL FOR DEFENDANT:
Potty Girl, LLC
Colin P. O’Rourke
Bienvenu, Bonnecaze, Foco & Viator
4210 Bluebonnet Boulevard
Baton Rouge, Louisiana 70809
(225) 388-5600
COUNSEL FOR INTERVENOR:
LUBA Casualty Insurance Company
PERRY, Judge.
Plaintiff, Mitchell Baudoin, brought this action seeking recovery for personal
injuries received in a construction site accident. The trial court granted a motion for
summary judgment filed by defendant, Accident Insurance Company (“AIC”), and
dismissed plaintiff’s claims as to it. Plaintiff suspensively appeals this judgment,
and for the reasons assigned, we affirm.
FACTS AND PROCEDURAL HISTORY
Charles Goudeau d/b/a Charles Goudeau General Contractor (“Goudeau”)
was the general contractor for a new construction project in Breaux Bridge,
Louisiana. On March 6, 2017, plaintiff was installing flooring at the aforementioned
construction site for Southern Tile Company, Inc. (“Southern Tile”) and was injured
when he was struck by a vehicle being operated by Chad Fritz (“Fritz”) 1 after exiting
a portable restroom.
On February 20, 2018, plaintiff instituted this action against Goudeau and his
insurer, AIC, among others, for personal injuries.2 AIC issued a commercial general
liability policy (“CGL policy”) to Goudeau, numbered CPP000032605, that was
effective from January 7, 2017, to January 7, 2018.
Plaintiff’s petition, in relevant part, alleged that plaintiff’s accident and
attendant injuries were caused by the negligence of Goudeau in the following
non-exclusive respects:
a) In placing the port-a-potty in or near a travel lane which he should
have known would be traversed by motor vehicles;
b) In facing the exit of the port-a-potty in such a manner that it
exited onto a travel lane known to have vehicular traffic upon it;
1
Plaintiff’s petition alleges Fritz was an employee of American Glass and Mirror Works,
Inc. and/or American Windshield Replacement and Repair, Inc. (hereinafter collectively referred
to as “American Glass”).
2
Plaintiff also asserted claims against Fritz; American Glass; National Trust Insurance
Company (“National Trust”); Potty Girl, LLC; and Burlington Insurance Company.
c) In failing to place the port-a-potty in a position where patrons of
same would not be exposed to the danger of vehicular traffic.
In March 2020, AIC filed a motion for summary judgment alleging a lack of
coverage on the bases that both an exclusion and an endorsement within the CGL
policy issued to Goudeau barred coverage for plaintiff’s claims. AIC contended the
incident made the basis of the instant litigation involves an injury to an employee,
contractor and/or employee of the contractor, which is specifically and
unambiguously excluded under Endorsement Form 3013, styled “Exclusion – Injury
to Employees, Contractors & Employees of Contractors” (Employees and
Contractors exclusion). AIC argued there is no genuine issue of material fact that
plaintiff’s claims are for bodily injury he suffered while performing work on the
construction site for Goudeau through Southern Tile; thus, AIC’s Employees and
Contractors exclusion barred coverage for plaintiff’s claims against Goudeau.
Alternatively, AIC contended there is no coverage for plaintiff’s claims
because Goudeau failed to comply with conditions set forth in its Endorsement Form
3007, entitled “Contractors Special Conditions” (“Contractors Special Conditions
endorsement”), which provides:
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILTY COVERAGE FORM
The following is added to SECTION IV – COMMERICAL
GENERAL LIABILITY CONDITIONS:
Contractors
As a condition precedent to coverage for any claim for injury or damage
based, in whole or in part, upon work performed by independent
contractors, the insured must have, prior to the start of work and the
date of the “occurrence” giving rise to the claim or “suit”:
(1) Received a written indemnity agreement from the
independent contractor holding the insured harmless
2
for all liabilities, including costs of defense, arising
from the work of the independent contractor;
(2) Obtained certificates of insurance from the
independent contractor indicating that the insured is
named as an additional insured and that coverage is
maintained with minimum limits of $500,000 per
occurrence;
(3) Obtained proof that the independent contractor has
workers compensation insurance if required by the
state in which the job(s) is located; and
(4) Obtained proof that all licenses as required by local
and/or state statute, regulation, or ordinance are up to
date.
The insured must maintain the records evidencing compliance with
paragraphs (1) through (4) above for a minimum of five years from the
expiration date of this policy. If coverage indicated under (2) and (3)
above are not maintained, we shall have no obligation to defend or
indemnify any insured for work performed by independent contractors
on your behalf represented by the certificates of insurance referenced
in (2) and (3) above.
The insurance provided by this policy shall be excess over and above
any other valid and collectible insurance available to the insured under
paragraph (2).
AIC asserted that prior to commencement of any work on the premises, its
Contractors Special Conditions endorsement required Goudeau to adhere to the
terms of the endorsement and obtain the requisite documents from subcontractors he
obtained for the job as a condition of coverage for any claim for damage based, in
whole or in part, upon work performed by independent contractors. It argued that
the current matter arises directly from work performed by subcontractors selected,
hired, and supervised by Goudeau, as American Glass was retained as a
subcontractor by Goudeau, and Fritz, the employee who struck plaintiff with a
vehicle, was an employee of American Glass at the time of the incident. Further,
Southern Tile was retained as a subcontractor by Goudeau, and plaintiff was retained
by Southern Tile at the time of the incident.
3
AIC alleged that with regard to its Contractors Special Conditions
endorsement, Goudeau had not obtained any of the requisite documents and had not
provided any evidence of certificate of liability insurance naming Goudeau as an
additional insured from the subcontractors, which includes Southern Tile and
American Glass; thus, there is no coverage for plaintiff’s claims because Goudeau
failed to comply with AIC’s Contractors Special Conditions endorsement. It offered
Goudeau’s deposition wherein he admitted the conditions for coverage under AIC’s
policy were not met.
Finally, AIC asserted the conditions precedent to coverage requiring Goudeau
to obtain particular indemnity agreements from subcontractors performing work on
the construction project, as well as to obtain status as an additional insured under
those subcontractors’ insurance policies, were held to be lawful in Sasser v. Wintz,
11-2022 (La.App. 1 Cir. 9/4/12), 102 So.3d 842.
Plaintiff, as well as defendants, American Glass and National Trust, filed
memoranda in opposition. Said oppositions mainly argued the Employees and
Contractors exclusion was ambiguous and the Contractors Special Conditions
endorsement was unlawful under La.R.S. 9:2780.1 of the Louisiana Anti-Indemnity
Act.
At the hearing held on June 3, 2020, Goudeau appeared pro se and presented
the trial court with an Affidavit in Opposition to Summary Judgment, wherein he
attested:3
That he has enrolled as additional counsel (Pro Se) for
CHARLES GOUDEAU GENERAL CONTRACTOR in these
proceedings for the reason that he lacks to [sic] funds to retain private
counsel to represent him in this matter.
3
Counsel for Goudeau, retained by AIC, was also present at the hearing under a reservation
of rights not to defend Goudeau against any insurance coverage issues.
4
That he opposes the Motion for Summary Judgment filed by
ACCIDENT INSURANCE COMPANY (AIC) and incorporates the
oppositions filed by Plaintiff, MITCHELL BAUDOIN and
AMERICAN GLASS AND MIRROR, INC.
That he had no funds to respond to any judgment rendered
against him in this matter and that his only assets are his family home
and his work vehicle.
At the conclusion of the hearing, the trial court rejected AIC’s contention the
Employees and Contractors exclusion barred coverage but accepted AIC’s
contention the Contractors Special Conditions endorsement barred coverage for
plaintiff’s claims against Goudeau. It stated, in part:
I find that there’s still some ambiguity whether [plaintiff] would be
considered an employee, a contractor, or subcontractor, or an
independent contractor. There’s some disagreement between the
parties as to where he actually qualifies or what his title would have
been to fall -- to see whether or not he’s excluded.
So, at this time, I don’t find that that exclusion applies to him
specifically right now, because there’s still a lot of ambiguity with
regards to what his position was and whether he would be excluded
with regards to that portion of the policy.
But I think -- and correct me if I am wrong -- the other condition
makes the policy unapplicable because the policyholder didn’t provide
the proper documents.
The instant suspensive appeal, filed by plaintiff, followed.4 In his sole
assignment of error, plaintiff asserts:
The trial court was in error in ruling that since Mr. Goudeau was unable
to produce evidence that there was Insurance Certificates for the
subcontractors, that Mr. Goudeau would not be provided with coverage
under the AIC policy because he did not comply with the Contractors
Special Condition. This special condition is not allowed under
Louisiana Revised Statute[s] 9:2780.1.
4
An appellate brief was also filed by American Glass and National Trust supporting
plaintiff’s appeal.
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LAW AND DISCUSSION
A motion for summary judgment is properly granted if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
affidavits submitted, if any, show there is no genuine issue of material fact such that
the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(A).
The burden is on the mover to establish that no material fact exists but, where the
movant will not bear the burden of proof at trial, the movant need only 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. La.Code Civ.P. art. 966(D)(1). Thereafter, the burden
shifts to the adverse party to produce factual support sufficient to establish that a
genuine issue of material fact exists such that summary judgment is not appropriate.
Id.
Summary judgments are reviewed on appeal de novo. Dunn v. City of Kenner,
15-1175 (La. 1/27/16), 187 So.3d 404. Appellate courts use the same criteria as the
trial court and ask the same questions: Is there any genuine issue of material fact,
and is the movant entitled to judgment as a matter of law? Id.
Our supreme court reviewed the principles of insurance contract interpretation
in Green ex rel. Peterson v. Johnson, 14-292, p. 4 (La. 10/15/14), 149 So.3d 766,
770-71, explaining:
[C]ertain elementary legal principles apply in analyzing an insurance
policy. First and foremost is the rule that an insurance policy is a
contract between the parties and should be construed using the general
rules of interpretation of contracts set forth in the Civil Code.
According to those rules, the responsibility of the judiciary in
interpreting insurance contracts is to determine the parties’ common
intent; this analysis is begun by reviewing the words of the insurance
contract. When the words of an insurance contract are clear and explicit
and lead to no absurd consequences, no further interpretation may be
made in search of the parties’ intent, and courts must enforce the
contract as written. The determination of whether a contract is clear or
ambiguous is a question of law. See Sims v. Mulhearn Funeral Home,
Inc., 07-0054 (La. 5/22/07), 956 So.2d 584, 589-90.
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In addition, exclusionary language in insurance contracts is strictly construed
against the insurer, and any ambiguity is construed in favor of the insured. Latour
v. Allstate Ins. Co., 18-395 (La.App. 3 Cir. 12/28/18), 262 So.3d 1088. Yet, the rule
requiring strict construction of an insurance contract against an insurer does not
authorize perversion of language, or the exercise of inventive powers for the purpose
of creating an ambiguity where none exists. Id. “Moreover, insurance companies
have the right to limit coverage in any manner they choose, if the limitations imposed
do not conflict with statutory provisions or public policy. Reynolds v. Select Props.,
Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180.” Latour, 262 So.3d at 1091-92.
Plaintiff contends La.R.S. 9:2780.1 applies to insurance contracts and,
consequently, the Contractors Special Conditions endorsement contained in AIC’s
policy is unlawful. Thus, the trial court erred in granting summary judgment, ruling
there is no coverage for plaintiff’s claims against Goudeau under AIC’s CGL policy.
We disagree.
Louisiana Revised Statutes 9:2780.1 governs defined motor carrier
transportation and construction contracts. It prohibits provisions or agreements
which require an indemnitor to indemnify, defend, or hold harmless an indemnitee
for liability or damages resulting from the indemnitee’s own negligence or
intentional acts or omissions. Louisiana Revised Statutes 9:2780.1 provides, in
pertinent part:
B. Notwithstanding any provision of law to the contrary and except as
otherwise provided in this Section, any provision, clause, covenant, or
agreement contained in, collateral to, or affecting a motor carrier
transportation contract or construction contract which purports to
indemnify, defend, or hold harmless, or has the effect of indemnifying,
defending, or holding harmless, the indemnitee from or against any
liability for loss or damage resulting from the negligence or intentional
acts or omissions of the indemnitee, an agent or employee of the
indemnitee, or a third party over which the indemnitor has no control is
contrary to the public policy of this state and is null, void, and
unenforceable.
7
Despite plaintiff’s insistence, we find no merit to the contention that
La.R.S. 9:2780.1 renders each condition of the insurance contract at issue herein
unlawful. While subsection (B) of La.R.S. 9:2780.1 prohibits indemnity
agreements, subsection (C) expressly permits additional insured contracts, stating,
in relevant part: “[N]othing in this Section shall be construed to prevent the
indemnitee from requiring the indemnitor to provide proof of insurance for
obligations covered by the contract.” Thus, we find that La.R.S. 9:2780.1(C) applies
such that the insurance contract between AIC and Goudeau contained a lawful
condition wherein Goudeau was required to be named as an additional insured on
his subcontractors’ insurance policies. In Goudeau’s deposition that AIC offered in
support of its motion for summary judgment, Goudeau offered no proof that any of
the Contractors Special Conditions were met. In fact, he admitted the conditions
were not met.
Finally, as pointed out by AIC, the conditions precedent to coverage requiring
Goudeau to obtain particular indemnity agreements from subcontractors performing
work on the construction project, as well as to obtain status as an additional insured
under those subcontractors’ insurance policies, were held to be lawful in Sasser, 102
So.3d 842. In Sasser, “a building inspector for the Iberville Parish Council fell when
a set of temporary steps became detached from the house frame while he was
ascending them to enter a home being constructed[.]” Id. at 845. The injured
inspector filed suit against the general contractor and its liability insurer, among
others. The liability insurer moved for summary judgment claiming a lack of
coverage. The CGL policy at issue therein contained the following Contractors
Special Conditions endorsement which expressly modified insurance coverage:
As a condition precedent to coverage for any claim or injury or damage
based, in whole or in part, upon work performed by independent
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contractors, the insured must have, prior to the start of work and the
date of the “occurrence” giving rise to the claim or “suit:”
(1) received a written indemnity agreement from the independent
contractor holding the insured harmless for all liabilities, including
costs of defense, arising from the work of the independent
contractor;
(2) obtained certificates of insurance from the independent contractor
indicating that the insured is named as an additional insured and
that coverage is maintained with minimum limits of $500,000.00
per occurrence[.]
Id. at 850-51.
In his deposition, the general contractor admitted his contract with the
subcontractor was verbal—there was no written indemnity agreement—and though
he required the subcontractor to provide him with a certificate of insurance, “the
coverage was for $300,000[,]” significantly less than the amount required. Id. at
851. Thus, the liability insurer’s motion for summary judgment was upheld with our
colleagues on the first circuit explaining:
The initial burden to establish that a claim falls within the policy
coverage is on the plaintiff. Evins v. Louisiana Farm Bureau Mutual
Insurance Company, 04-0282, p. 3 (La.App. 1st Cir. 2/11/05), 907
So.2d 733, 734. In opposition to [the liability insurer’s] motion for
summary judgment, the plaintiffs and intervenor simply alleged that
[the subcontractor] should be held to be an employee so that the
aforementioned limitations of coverage for an independent contractors
would not apply. On appeal, they acknowledge that [the insured] “failed
to receive any sort of indemnity agreement and failed to obtain
$500,000.00 in insurance from [the] subcontractor.”
However, if the wording of the policy is clear and expresses the
parties’ intent, the policy must be enforced as written. This rule is
applicable even to policy provisions that limit the insurer’s liability or
place restrictions on policy obligations. McQuirter v. Rotolo, 11-0188,
p. 8 (La.App. 1st Cir. 9/14/11), 77 So.3d 76, 80. Absent a conflict with
statutory provisions or public policy, insurers are entitled to limit their
liability and to impose and enforce reasonable conditions on the policy
obligations they contractually assume. McDonald v. American Family
Life Assurance Company of Columbus, 10-1873, p. 6 (La.App. 1st Cir.
7/27/11), 70 So.3d 1086, 1090. Accordingly, as the conditions for
coverage under the [liability] policy clearly were not met, we find that
the trial court did not err in granting summary judgment in favor of [the
liability insurer].
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Id.
Just as the general contractor in Sasser failed to satisfy the conditions
associated with his liability policy, the conditions for coverage under the Contractors
Special Conditions of the AIC policy at issue herein were not met by Goudeau.
Thus, we find the trial court did not err in granting AIC’s motion for summary
judgment and dismissing plaintiff’s claims against it.
DECREE
For the reasons assigned, the judgment of the trial court is affirmed. Costs are
assessed to plaintiff/appellant.
AFFIRMED.
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