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Summary Judgment Risk When Failing to Follow Policy Language

Regardless of your level of legal training, we’re all guilty of ignoring the fine print but insurance coverage is often determined by the placement of an unnoticed word or punctuation mark in the language of the policy. Under Louisiana law, the insured bears the burden of proving that an incident falls within the terms of the policy. In contrast, an insurer seeking to avoid coverage through a motion for summary judgment bears the burden of proving that a provision or exclusion precludes coverage. Courts treat insurance policies like other contracts and therefore strive to interpret each term according to its true meaning. As straightforward as it sounds, a contract’s true meaning is always disputed even if on its face the language appears clear. This requires courts to hear creative arguments on the meaning of particular terms buried in the policy.

On June 8, 2010, in an unfortunate incident at the Library Lounge in Monroe, McKenzie A. Hudson (Mr. Hudson) was approached by an intoxicated patron and struck in the head. In December 2010, Mr. Hudson died from severe brain injuries allegedly suffered during the attack. Mr. Hudson’s mother filed a wrongful death/survival suit against several defendants including the entity that owned the bar as well as its principals. Several weeks later Ms. Hudson added First Financial Insurance Company (FFIC), insurer of the bar.

Recognizing the language of the bar’s insurance policy, Ms. Hudson admitted that her son’s assailant did not intend or expect her son’s death but instead it resulted when he lost consciousness, fell to the pavement, and fractured his skull. The particular provision at issue in the policy read that it did not provide coverage for assault, battery, or other physical altercation. The policy defined assault in part as “a willful attempt or threat to inflict injury upon another” and battery as “wrongful physical contact with a person without his or her consent that entails some injury or offensive touching.”

Ms. Hudson differentiated between the FFIC’s old policy language which was ambiguous as to “extraordinary” injuries and its current policy which included amendments intended to broaden and clarify exclusions. Ms. Hudson specifically pointed to the removal of an “or” between the assault and battery provisions which had the effect of causing the provisions to be read together. This eliminated coverage for all “intended” or “expected” injuries. Since her son was not intentionally killed or expected to die she argued coverage should be provided. In response, FFIC submitted numerous cases where similar assault and battery exclusions were upheld.

Like the trial court, the court of appeals granted summary judgment in favor of FFIC for several reasons. First, the court reviewed the cases submitted by the FFIC and concluded that the “overwhelming” majority of insurers were dismissed from suits arising from injury or death after an assault or battery. Furthermore, the court pointed to a similar case where it was determined that the presence of an “and” or “or” did not necessarily indicate that the provisions should or should not be read together. The court concluded that the provisions were clear in their language and that there was no question Mr. Hudson was the victim of battery. Therefore, the policy excluded insurance coverage for his death.

Although the courts demonstrate a reluctance to rule against the insurance companies in policy exclusion cases this does not mean a particular result is guaranteed. The terms of each insurance policy varies and requires careful review of its language before any legal action is taken.

Clients seeking damages from a defendant’s insurance company should call the Berniard Law Firm to have an experienced attorney review the terms of the policy at issue.