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Richard v. Milazzo11/8/2002
Kline, J. Dissents for the reasons assigned by Fogg, J.
Fogg, J. dissents and assigns reasons.
In this personal injury action, issues concerning liability, damages, and insurance coverage are raised on appeal. For the following reasons, we reverse in part and affirm in part.
On April 3, 1995, a confrontation occurred between Wayne Richard and Tony Milazzo. Richard brought suit for damages against Milazzo and Milazzo's homeowner's insurance carrier, New Hampshire Insurance Company (NHIC). NHIC moved for summary judgment, asserting no insurance coverage based on the policy's business pursuits exclusion. The trial court denied NHIC's motion for summary judgment, and the parties proceeded to trial. The trial court rendered judgment in favor of Richard and against Milazzo in the sum of $50,000, plus legal interest and costs. The trial court dismissed Milazzo's suit against NHIC, finding no insurance coverage under the policy's business pursuits exclusion. Milazzo and Richard appeal.
Initially, both Milazzo and Richard assert the trial court erred in considering the issue of coverage. They contend the trial court's denial of the motion for summary judgment disposed of NHIC's business pursuits exclusion defense in their favor and foreclosed subsequent consideration of the issue of coverage by the trial court.
We disagree. Pursuant to LSA-C.C.P. art. 968, no appeal lies from the denial of a motion for summary judgment; the denial of a motion for summary judgment is an interlocutory judgment. Interlocutory judgments are not binding on the trial court. VaSalle v. Wal-Mart Stores, Inc., 20010462, p. 8 (La. 11/28/01), 801 So.2d 331, 336. Furthermore, it is well settled that prior to final judgment a district court may, at its discretion and on its own motion, change the result of its interlocutory rulings. Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328, 332 (1972). Therefore, the prior interlocutory ruling denying summary judgment did not prohibit the trial court's subsequent consideration of the issue of coverage.
Richard and Milazzo also assert the trial court erred in finding no insurance coverage, based on the policy's business pursuits exclusion. An insurance policy is a contract, and the rules governing the interpretation of written agreements apply to insurance contracts. An insurance contract is the law between the parties, and every provision therein must be construed as written. Insurers may limit their liability, so long as the limitations are not in conflict with statutory provisions or public policy and so long as the limitations are unambiguous and easily understandable. Perault v. Time Ins. Co., 633 So.2d 263, 266 (La.App. 1 Cir. 1993), writs denied, 93-3133, 93-3156 (La. 2/11/94), 634 So.2d 833, 834.
The policy issued to Milazzo excluded injury :
Arising out of or in connection with a "business" engaged in by an "insured." This exclusion applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the "business" . . . .
Shortly before the altercation, Milazzo purchased Children's Health Center of Louisiana (CHC), a health care clinic, from Jeanne Hebert and others. On April 3, 1995, CHC was not open for business, and Milazzo was taking inventory at the CHC office when Hebert, accompanied by Richard, arrived. Milazzo ordered Hebert and Richard to leave, and during the confrontation that followed, Milazzo pushed Richard, who fell and injured his back.
The business pursuits exclusion, like other exclusions in a homeowner's p
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