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Leblanc v. Succession of Raggio2/20/2002
to the insurer in the absence of prejudice resulting from the delay in notice.
CONCLUSION
For reasons stated the judgment of the trial court is reversed and this matter is remanded for further proceedings. Costs are taxed to Westport Insurance Corporation.
REVERSED AND REMANDED.
LANIER, J., dissenting.
I agree with the trial court judge that Anderson v. Ichinose, 760 So.2d 302 (La. 1999) is controlling and that a summary judgment should be granted.
FITZSIMMONS, Judge, concurring and dissenting with reasons.
I respectfully concur in the result reached in the majority report that the summary judgment should be reversed. I do not, however, agree with the legal interpretation and conclusion in the opinion that the terms of Westport's insurance policy regarding when a claim can be made are void because they are in contravention of the statutory provisions of La. R.S. 22:629. Instead, I would reverse the summary judgment on the basis of the existence of material issues of fact.
In oral reasons for judgment, the district court stated that it was plaintiff's contention in the motion for summary judgment that the insured was aware that a claim for malpractice could have been brought on February 24, 1997 when the plaintiff's benefits were terminated. My review of the record, however, does not reveal any supportive evidence to demonstrate that assertion. Accordingly, there exists a material issue of fact as to the date on which the cause of action, and basis for the malpractice claim of coverage, arose. In the absence of a demonstration that the insured knew or should have known of his exposure to a malpractice lawsuit during the policy period and up to the statutorily required period of one year following the time of that claim, the malpractice action does not fall within the legally enforceable requirements of a "claims-made" policy. See Anderson v. Ichinose, 98-2157, pp. 9-10 (La. 9/8/99), 760 So.2d 302, 307.
In Anderson, after recognizing the enforceability of "claims-made" insurance policies as long as they don't conflict with statutory provisions or public policy, the Louisiana Supreme Court upheld the terms of a policy that limited coverage to professional services for which claims were made during the policy period. As with the Hedgepeth policy, the policy reviewed in Anderson provided that the professional service must have been performed and the claim must first be made while the agreement was in effect. Significant to the court's decision to uphold the provisions of the policy was the fact that "the event that triggered policy coverage did not occur during the policy period." Anderson, 98-2157 at p. 10, 760 So.2d at 307.
There is an outstanding material issue of fact in the case at hand: "the event that triggered policy coverage" would be the insured's awareness of Ms. LeBlanc's potential claim against him if that occurred during the policy period. Therefore, the summary judgment should be reversed.
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