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Williams v. City Baton Rouge4/30/1998
term ultimate net loss, by reason of liability
(a) imposed upon the insured by law, or
(b) assumed by the named insured, or by any officer, director, stockholder or employee thereof while acting within the scope of his duties as such, under any contract or agreement, because of personal injury , property damage, or advertising liability caused by or arising out of an occurrence which takes place during the policy period anywhere in the world.
The policy defines an "occurrence" to mean:
an accident, including a continuous or repeated exposure to conditions, which results . . . in a personal injury , property damage or advertising liability neither expected nor intended from the standpoint of the insured. . . .
Chicago asserts the trial court erred in finding that the personal injury to plaintiffs by the City/Parish was "neither expected nor intended from the standpoint of the insured." We disagree.
Breland v. Schilling, 550 So.2d 609 (La. 1989), is the seminal case dealing with the issue of whether a personal injury was expected or intended from the standpoint of the insured. As noted by the supreme court, "The effect of the language used in this exclusion clause is not always clear. In fact, when construed in light of the myriad fact situations to which it has been applied, it is often ambiguous." Breland, 550 So.2d at 610. Ambiguous policy provisions are to be construed against the confector, the insurer. Id. Ambiguity will also be resolved by ascertaining how a reasonable insurance policy purchaser would construe the clause at the time the insurance contract was entered. Id.
The Breland court explained that the subjective intention and expectation of the insured determine which injuries fall within and which fall beyond the scope of coverage under this policy, not the inquiry regarding intentional torts which asks what consequences an objective reasonable person might expect or intend as the result of a deliberate act. Id. at 611.
Applying the Breland holding to the facts before us, we find the evidence supports the trial court's implicit factual finding that the City/Parish did not subjectively intend or expect the injury it caused. From the perspective of the City/Parish officials undertaking the DPW excavation project, they believed they were duly exercising the City/Parish's power of eminent domain. Mayor Screen, mistaken as to the legal rights of the City/Parish, and Director Addison took action they believed served the public welfare. We cannot say the trial court was manifestly erroneous or clearly wrong in concluding the personal injury was neither expected nor intended from the standpoint of the City/Parish in light of the evidence in this record.
Because Chicago has conceded that if F & C's underlying policy provided coverage, the Chicago policy likewise provides coverage, we conclude the trial court correctly determined the insurance coverage issue. We hold the F & C policy with its $400,000.00 limit provides coverage for all damages in excess of $100,000.00 and up to $500,000.00, and Chicago's excess policy provides coverage for all remaining damages.
C. Insurers' Liability for Legal Interest and Costs
The final issue raised by Chicago is that the trial court erred by holding it liable along with F & C for legal interest from the date of judicial demand, as well as attorney's fees and costs. Having concluded there is coverage for attorney fees, we examine the trial court's determination only insofar as it casts Chicago liable along with F & C for legal interest and costs.
Chicago contends that the scope of coverage afforded t
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