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Herzog Contracting Corp. v. Oliver12/19/2001
Summary Judgment." The court did not consider at that time the affidavit of Ms. Smiley filed September 6th.
On September 29, 2000, GTL filed a "Motion to Strike (Ms. Smiley's) Affidavit" contending that it was untimely and insufficient as a matter of law because it was not based upon personal knowledge and contained hearsay statements, opinions and conclusions which were not admissible in evidence. GTL also filed a response to the Maryland Defendants* "Reply Memorandum in Support of Motion for Summary Judgment." The Maryland Defendants filed an "Opposition to Geotechnical*s Motion to Strike (Ms. Smiley's) Affidavit" on January 5, 2001.
On January 16, 2001, the trial court denied GTL*s motion to strike. At the same time, the trial court granted the Maryland Defendants* motion for summary judgment, and dismissed the claims of GTL against the Maryland Defendants with prejudice. The court declined to provide reasons for its ruling in a letter to counsel dated March 28, 2001. On March 12, 2001, the trial court granted the Maryland Defendants' motion and designated its judgment dated January 16, 2001, "as a final appealable judgment."
Both GTL and Herzog appealed the judgment denying the motion to strike and the judgment granting summary judgment.
Discussion
Although many issues are raised by this appeal, appellants allege only two assignments of error regarding the trial court's grant of the Maryland Defendants' motion for summary judgment. First, appellants contend that the trial court erred in denying their motion to strike the affidavit of Vaneta Smiley. Second, appellants urge that the trial court erred in finding that there were no genuine issues of disputed material fact and that summary judgment was appropriate. We find the question concerning the affidavit to be specious and lacking any real merit. GTL has never suggested that the National Standard policy is not authentic or that any other policies exist. We will therefore address appellants' argument regarding the propriety of the trial court's grant of summary judgment.
The Merits of the Trial Court's Grant of the Motion for Summary Judgment
As an appellate court, we review summary judgment de novo under the same criteria that govern the trial court's considerations regarding the appropriateness of summary judgment. Schroeder v. Board of Supervisors, 591 So.2d 342 (La. 1991).
A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, 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.C.C.P. art. 966. Further, through a 1997 amendment to La.C.C.P. art. 996, the jurisprudential presumption against granting summary judgment has been eliminated. Instead, the enacted changes have leveled the playing field for the litigants. Documentation submitted by the parties will now be scrutinized equally. Indeed, summary judgment is now favored to secure the just, speedy, and inexpensive determinations of all except certain disallowed actions. La.C.C.P. art. 966A(2). Koeppen v. Raz, 29,880 (La. App. 2d Cir. 10/29/97), 702 So.2d 337; Gardner v. LSU-MC, 29,946 (La. App. 2d Cir. 10/29/97), 702 So.2d 53.
The trial court gave no specific written reasons for granting the motion for summary judgment. However the record is clear that the grounds upon which coverage was denied by the Maryland Defendants are that the losses for which GTL might be liable were not "property damage" caused by an "occurrence" as defined by the policy. The Maryland Defendants also contend that the policy exclud
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