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Williams v. City Baton Rouge4/30/1998
BR>
Each of the following is an insured under this insurance to the extent set forth below:
(c) if the named insured is designated in the declarations as other than an individual, partnership or joint venture [as set forth in subsections (a) and (b)], the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such.
According to the additional definition explained in the Personal Injury Liability of this section of the F & C policy:
When used in reference to this insurance:
"damages" means only those damages which are payable because of personal injury arising out of an offense to which this insurance applies. (Emphasis deleted.)
We first address the assertion that the F & C policy requires that the City/Parish prove an occurrence before coverage is afforded. The insurers maintain that the section entitled "Personal Injury Liability" must be read in conjunction with the other provisions of the policy. The City/Parish urges that there is nothing in the Personal Injury Liability section that cross-references it to the remainder of the policy. Thus, it contends that under the plain language of the Personal Injury Liability section, the F & C policy affords coverage for the tortious damage to plaintiffs' property without proof of an occurrence.
Where the language in the policy is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. Reynolds v. Select Properties, Ltd., 93-1480, p. 3 (La. 4/11/94); 634 So.2d 1180, 1183. However, if after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured. Id. The purpose of liability insurance is to afford the insured protection from damage claims. Policies should be construed to effect, and not to deny, coverage. Id.
Our review of the F & C policy reveals that there is nothing in the Personal Injury Liability section that cross-references the remainder of the policy. Because any ambiguity created by the lack of a cross-reference to the remainder of the F & C policy must be construed in favor of finding coverage, we conclude that under the Personal Injury Liability section of the F & C policy, the City/Parish is not required to prove an occurrence.
Turning now to the insurers' assertion that the Personal Injury Liability section expressly excludes the damages arising from the City/Parish's tortious conduct in this lawsuit, the insurers rely on the following language in the Personal Injury Liability section of the F & C policy:
This insurance does not apply . . .
to personal injury arising out of the wilful violation of a penal statute or ordinance committed by or with the knowledge of such person by the named insured. . . .
F & C and Chicago maintain the trial court's Conclusion that the City/Parish violated 42 U.S.C. § 1983 constitutes a willful violation of a penal statute or ordinance as contemplated by the exclusionary language. However, we agree with the City/Parish that the trial court's Conclusion that the City/Parish violated plaintiffs' civil rights under § 1983 was erroneous; therefore, the insurers may not rely on a § 1983 violation as a basis for invoking this exclusion in the Personal Injury Liability section of the F & C policy.
Alternatively, the insurers contend that the actions of the City/Parish in trespassing onto plaintiffs' property violated La. R.S. 14:63.3, "Entry on or remaining in places on land after being forbidden," and Chap
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