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Lecompte v. Lafayette Insurance Co.9/28/2001
FITZSIMMONS, J., dissents and assigns reasons.
Lafayette Insurance Company, hereinafter, "Lafayette," appeals two partial summary judgments rendered against it in favor of the plaintiffs/appellees, Jana and Baron Lecompte, and in favor of co- defendant/appellee, Walter Sawyer. Lafayette also appeals the trial court's denial of its motion for summary judgment. Lafayette contests the trial court's ruling that an insurance policy exclusion was not applicable where the exclusion precluded coverage of the subject premises while rented on other than an occasional basis. For reasons stated, we affirm.
FACTS AND PROCEDURAL HISTORY
The LeComptes filed suit against Lafayette and Walter Sawyer on January 13, 1998, alleging that their minor daughter, Tayler Nicole, suffered personal injuries to her foot from a nail protruding from a fishing wharf attached to property in Raceland, Louisiana, then rented by Curt and Sonya Matherne but owned by Sawyer. Upon completion of discovery, the LeComptes and Sawyer filed motions for partial summary judgment against Lafayette on the issue of insurance coverage. Lafayette also filed a motion for summary judgment on the same issue alleging that an exclusion clearly and unambiguously denied coverage under the facts of this case.
On February 4, 2000, the trial court heard the motions for summary judgment and ruled in favor of the LeComptes and Sawyer and against Lafayette, concluding as a matter of law that the insurance policy exclusion at issue was not applicable in this matter. The trial court signed a judgment to this effect on February 18, 2000, which it certified as a final judgment.
Lafayette now appeals asserting as its one assignment of error that the trial court committed manifest error by failing to give the language of an insurance policy exclusion its allegedly clear, unambiguous and obvious meaning as required by law.
DISCUSSION
An appellate court's review of a summary judgment is a de novo review based on the evidence presented at the trial court level, using the same criteria used by the trial court in deciding whether a summary judgment should be granted. J. Ray McDermott, Inc. v. Morrison, 96- 2337, p. 9 (La.App. 1 Cir. 11/7/97), 705 So.2d 195, 202, writs denied, 97-3055, 97-3062 (La. 2/13/98), 709 So.2d 753, 754. The narrow issue before this court involves an exception to an exclusion in a property insurance policy where coverage is provided if owned property was rented to others on an "occasional" basis. The presence or absence of insurance coverage in this matter depends on this determination. In deciding the cross-motions for summary judgment, the trial court concluded in its oral reasons that this provision, set forth below, was ambiguous.
We conclude that the trial court erred in this regard, but that for other reasons, its judgment was legally correct. In Blue Ridge Insurance Co. v. Newman, 423 So. 2d 1 (La.App. 1st Cir. 1982), amended in part, reversed in part on other grounds, 453 So. 2d 554 (La. 1984), this court considered the meaning of "occasional" in the context of a very similar insurance policy provision addressing "business pursuits." In Blue Ridge this court provided a definition for the word, "occasional," from Webster's New International Dictionary, Second Edition, as follows:
a) Occurring now and then;
b) Made or happening as opportunity requires or admits;
c) Casual;
d) Incidental; and
e) Occurring at irregular intervals, infrequent. Blue Ridge, 423 So. 2d at 4.
The Blue Ridge court found the antonym of "occasional' to be "continuous" as defined in Black's L
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