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Bujol v. Entergy Services8/14/2002
th the plain, ordinary, and popular sense of the language used in the agreement and by giving consideration on a practical basis to the instrument in its entirety. Coates v. Northlake Oil Company, Inc., 499 So.2d 252, 255 (La. App. 1 Cir. 1986), writ denied, 503 So.2d 476 (La. 1987). Additionally, any ambiguity as to the meaning provided in the provisions is to be interpreted against the insurer as drafter of the contract. La. Civ. Code art. 2056; Livas v. State Farm Mut. Ins. Co., 99-1169, p. 8 (La. App. 1 Cir. 7/18/00), 797 So.2d 694,699.
On appeal, X.L. reiterates its argument that coverage is barred because ALSA did not provide X.L. with notice of the occurrence of the accident within its policy period. X.L. relies on the following policy language:
The X.L. Insurance Company, Ltd . ... agrees ... to indemnify the Insured for all sums which the Insured shall be obligated to pay ... for damages on account of
(1) personal injury ... resulting from:
Coverage (A): An occurrence (as defined herein), notice of which shall have been given by the Named Insured to the Company prior to the expiration of this Coverage (A) ....
X.L. argues the above language converts its policy from an occurrence policy to an "occurrence reported" policy; thus, X.L. attempts not only to evade its obligations as the issuer of an occurrence policy, but also to reap the benefits of a claims-made policy while avoiding the limited enforceability of such a policy imposed by the jurisprudence.
The major distinction between an occurrence policy and a claims-made policy encompasses the difference in the peril insured. In an occurrence policy, the peril insured is the occurrence itself. Once the occurrence takes place, coverage attaches even though the claim may not be made for some time thereafter. In a claims-made policy, it is the making of the claim that is the event and peril being insured, regardless
of when the occurrence took place. Anderson v. Ichinose, 98-2157, p. 6 (La. 9/8/99), 760 So.2d 302, 305, quoting Sol Kroll, The Professional Liability Policy "Claims Made," 13 Forum 842, 843 (1978). In Anderson, the policy was not a pure claims made policy, but a claims-made-and-reported policy, the purpose of which was to alleviate problems in determining when a claim is made or whether an insured should have known a claim is going to be made. Anderson, 98-2157 at p. 7, 760 So.2d at 306. Regarding the enforcement limitations on a claims-made policy, the court noted:
Several courts have divided on the issue of whether a third party tort victim, who is denied coverage under a claims-made policy because the timely notified insured failed to notify the insurer timely, may resort to the public policy provisions of the Direct Action Statute to obtain coverage, as has sometimes been permitted in similar situations under occurrence policy. See Williams v. Lemaire, 94-1465 (La.App. 4th Cir. 5/16/95), 655 So.2d 765, cert. denied, 95-1514 (La. 9/22/95), 660 So.2d 481; Murray v. City of Bunkie, 96-297 (La.App. 3d Cir. 11/6/96), 686 So.2d 45, cert. denied, 97-0514 (La. 5/9/97), 693 So.2d 767; Reichert v. Bertucci, 94-1445 (La.App. 4th Cir. 1/31/95), 650 So.2d 821; Resolution Trust Corp. v. Ayo, 31 F.3d 285 (5th Cir. 1994). Because [the insured] was not notified of the claim and neither knew nor should have known of the claim during the policy period, we need not discuss whether notice to the insured satisfies the policy requirement of notice to the insurer in the absence of prejudice resulting from the delay in notice.
As stated ..., we leave for another day the question of whether a claims-made insurer may raise, in an action by a victim o
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