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Hemstad v. Jefferson Parish School Board10/6/2005
Panel composed of Judges James L. Cannella, Clarence E. McManus, and James C. Gulotta, Pro Tempore
AFFIRMED
This is an appeal from a summary judgment rendered in favor of St. Paul Fire and Marine Insurance Company (St. Paul) on the issue of insurance coverage. We affirm.
Multiple plaintiffs filed suit against Jefferson Parish School Board (JPSB) alleging that while employed by JPSB and working on or in the John Martyn High School offices, they suffered injury and illness as a result of exposure to "unknown toxic substances and safety hazards" and "toxic mold."
The basis of plaintiffs' claim is that JPSB failed to effect repairs, failed to exercise reasonable care in their management of John Martyn High School, and failed to take immediate steps to mitigate or repair the defects. Plaintiffs further allege that JPSB was grossly negligent and acted with deliberate indifference and disregard of their welfare. In an amended petition plaintiffs allege that they were injured due to the "battery by defendants of repeatedly exposing the plaintiffs to the toxic substances."
JPSB's insurer, St. Paul, filed a motion for summary judgment on the issue of coverage arguing that the applicable Commercial General Liability Protection policy issued to JPSB by St. Paul ("the policy") contains three separate exclusions which bar coverage. Of the three separate exclusions, this appeal is concerned only with the "Employers Liability Exclusion" and the "Expected or Intended Injury Exclusion."
The exclusions at issue in the instant case are as follows:
Exclusions -- What this Agreement Won't Cover
Employers liability. We won't cover bodily injury to an employee of the protected person arising out of and in the course of his or her:
* Employment by the protected person; or
* Performance of duties related to the conduct of the protected person's business.
Nor will we cover bodily injury to the spouse or any child, parent, brother, or sister of that employee if such bodily injury results from the bodily injury to the employee.
We'll apply this exclusion whether the protected person may be held liable as an employer or in any other capacity, such as a property owner or product manufacturer.
We'll also apply this exclusion to any obligation of the protected person to share damages with or repay someone else who must pay damages because of bodily injury to any employee of the protected person.
Expected or Intended bodily injury or property damage. We won't cover bodily injury or property damage that's expected or intended by the protected person. Nor will we cover medical expenses that result from such bodily injury.
But we won't apply this exclusion to bodily injury, property damage, or medical expenses that result from the use of reasonable force to protect people or property.
In a judgment dated September 7, 2004 the trial judge granted St. Paul's motion, and dismissed plaintiffs' suit against it. The judgment was designated as a final judgment by the trial judge, after an expressed determination that there was no just reason for delay.
On November 9, 2004, the trial judge granted plaintiffs' and JPSB's motions for a new trial and amended the September judgment to set it aside only in so far as Terry Hemstad's negligent tort claim is concerned. The September judgment dismissing the remaining plaintiffs' suits remained in full force and effect. Plaintiffs appeal.
Hemstad was employed by the sheriff's office and consequently was not an employee of JPSB and therefore the Employers Liability E
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