Opinion
2015 CA 1941
08-10-2016
MY PHUONG TRAN, INDIVIDUALLY AND FOR THE MINOR DUNG Q. TRAN v. HUY THE DAO, FIVE STAR NAIL SPA, LLC AND XYZ INSURANCE COMPANY
Neal R. Elliott, Jr. Joel D. Moran Baton Rouge, LA Attorneys for Plaintiffs/Appellants My Phuong Tran and Dung Q. Tran Greg Gouner Baton Rouge, LA Attorney for Defendants/Appellees Huy The Dao and Five Star Nail Spa, LLC Glenn G. Goodier William P. Wynne New Orleans, LA Attorneys for Defendant/Appellee Transportation Insurance Company
NOT DESIGNATED FOR PUBLICATION On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
No. C608321 The Honorable Donald Johnson, Judge Presiding Neal R. Elliott, Jr.
Joel D. Moran
Baton Rouge, LA Attorneys for Plaintiffs/Appellants
My Phuong Tran and Dung Q. Tran Greg Gouner
Baton Rouge, LA Attorney for Defendants/Appellees
Huy The Dao and Five Star Nail Spa,
LLC Glenn G. Goodier
William P. Wynne
New Orleans, LA Attorneys for Defendant/Appellee
Transportation Insurance Company BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.
Plaintiffs-appellants, My Phuong Tran (My), and Dung Q. Tran (Dung) appeal a motion for summary judgment granted in favor of defendant-appellee, Transportation Insurance Company (TIC), that dismissed plaintiffs' claims against TIC with prejudice. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On January 12, 2012, plaintiffs filed a petition for damages against Huy The Dao (Huy) and Five Star Nail Spa, LLC (Five Star). According to plaintiffs' petition and affidavits, both My and Dung were employed by Five Star located in Baton Rouge, Louisiana. Huy was a partial owner and manager of Five Star with his sister Hung Nguyen (Hung). The petition alleged that on January 20, 2011, at approximately 11:00 p.m. after Dung finished his work at Five Star for the day, Hung gave Dung a ride home. On the way to Dung's home, Huy called Hung and asked her to stop at Wendy's where he would meet her and then bring Dung home. Upon arrival at Dung's home, Dung and Huy went into Dung's bedroom where Huy sexually molested Dung (the incident). Dung was sixteen at the time of the incident.
Hung was not named as a defendant in this case and there were no allegations in plaintiffs' petition or supplemental petition of any negligence against Hung in her individual capacity.
On December 3, 2014, plaintiffs supplemented and amended their petition to name Transportation Insurance Company (TIC) as a defendant, seeking insurance coverage under the business owner's liability policy issued to Five Star, which was in effect at the time of the incident. TIC filed an answer denying coverage pursuant to exclusions contained in the insurance policy.
On May 20, 2015, TIC filed a motion for summary judgment seeking dismissal of all claims against it with prejudice. In support of its motion, TIC submitted as evidence the business owner's policy issued to Five Star to establish that plaintiffs' claims were excluded from coverage. The applicable section of the TIC insurance policy is the Business Owner's Liability Coverage Form, which provides, in pertinent part:
BUSINESSOWNERS LIABILITY COVERAGE FORM
Various provisions in this policy restrict coverage.
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The word "insured" means any person or organization qualifying as such under Section C. - Who Is An Insured.
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A. Coverages
1. Business Liability (Bodily Injury, Property Damage, Personal and Advertising Injury)
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b. This insurance applies:
(1) To "bodily injury" and "property damage" only if:
(a) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory";
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B. Exclusions
1. Applicable To Business Liability Coverage
This insurance does not apply to:
a. Expected Or Intended Injury
"Bodily injury" or "property damage" expected or intended from the standpoint of the insured.
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d. Workers' Compensation And Similar Laws
Any obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law.
e. Employer's Liability
"Bodily Injury" to:
(1) An "employee" of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured's business; or
(2) The spouse, child, parent, brother or sister of that "employee" as a consequence of (1) above.
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity ....
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C. Who Is An Insured
1. If you are designated in the Declarations as:
c. A limited liability company, you are an insured. Your members are also insureds, but only with respect to the conduct of your business. Your managers are insureds, but only with respect to their duties as your managers.
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2. Each of the following is also an insured:
a. ... your "employees," other than ... your managers (if you are a limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your
business. However, none of these "employees" ... are insureds for:
(1) "Bodily injury"....
(a) To you, to your ... members (if you are ... a limited liability company), or to a co-"employee" while in the course of his or her employment or performing duties related to the conduct of your business, or to your other "volunteer workers" while performing duties related to the conduct of your business;
(b) To the spouse, child, parent, brother or sister of that co-"employee" as a consequence of Paragraph (a) above[.]
Under this policy, "bodily injury" means sickness or disease sustained by a person, including death resulting from any of these at any time.
Following a hearing, the trial court rendered summary judgment on September 8, 2015, in favor of TIC and dismissed plaintiffs' claims with prejudice. Thereafter, plaintiffs devolutively appealed the September 8, 2015 judgment, arguing that the trial court erred in granting the summary judgment in favor of TIC because genuine issues of material fact remain regarding whether the incident was covered under the insurance policy and whether any vicarious liability could be imputed on Five Star.
The trial court designated the summary judgment as final for purposes of immediate appeal in accordance with La. C.C.P. art. 1915(B)(1). However, we observe that the judgment appealed is a final judgment in its own right pursuant to La. C.C.P. art. 1915(A)(1).
STANDARD OF REVIEW
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. A summary judgment is appealed de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880, 882-83; see Adams v. Arceneaux, 2000-1440 (La. App. 1 Cir. 6/22/01), 809 So.2d 190, 193-94.
A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, admitted for purposes of the summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).
Louisiana Code of Civil Procedure article 966 was recently amended by 2015 La. Acts 422, § 1; however, the new version of article 966 does not apply to this case as the amendment did not become effective until January 1, 2016. Accordingly, we apply the prior version of Article 966 to the instant matter.
A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some provision or exclusion applies to preclude coverage. Henly v. Phillips Abita Lumber Co., Inc., 2006-1856 (La. App. 1 Cir. 10/3/07), 971 So.2d 1104, 1108.
DISCUSSION
Vicarious Liability
The primary issue in this appeal is whether the incident forming the basis of plaintiffs' claims falls within the scope of coverage of TIC's insurance policy. Plaintiffs claim that there are genuine issues of material fact as to whether Five Star is vicariously liable for the incident and whether Huy intended to sexually molest Dung.
First, plaintiffs argue that Five Star is vicariously liable for the incident because "[Huy's] sister transported [Dung] from Five Star's premises and delivered him into [Huy's] custody at a Wendy's parking lot, which ... establishes a close connection between Five Star, its business activities, and the incident ... [and] [t]his closely connect[s] the incident in time, place and causation to the employment duties or ownership duties of [Huy] and his sister."
Vicarious liability in Louisiana is based on La. C.C. art. 2320, which states, in pertinent part:
Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.Under this article, liability extends only to the employee's tortious conduct that is within the course and scope of the employment. The specific inquiry in determining whether an employee is within the course and scope of his employment is whether the employee's tortious conduct is so closely connected in time, place, and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer's business as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interest. Henly, 971 So.2d at 1113. The Louisiana Supreme Court in LeBrane v. Lewis, 292 So.2d 216, 218 (La. 1974), laid out the factors necessary to determine whether an employer has vicarious liability for the intentional torts of its employees. These factors include whether the tortious act: (1) was primarily employment rooted; (2) was reasonably incidental to performance of employment duties; (3) occurred during working hours; and (4) occurred on the employer's premises. Id. It is not necessary that each factor be present in each case, and each case must be decided on its own merits. Bova v. Butler, 2014-0765 (La. App. 1 Cir. 12/23/14), 168 So.3d 551, 553, writ denied, 2015-0172 (La. 4/17/15), 168 So.3d 398.
After examining the factual allegations concerning plaintiffs' claims, we have determined that none of the factors under LeBrane are not met in this case and Five Star is not vicariously liable for the incident. The testamentary and documentary evidence confirms that the sexual molestation of Dung was not employment-rooted or reasonably incidental to the performance of the employee's duties at Five Star. Because Five Star is a nail salon business, one can reasonably conclude that the employee's duties at Five Star did not include sexual molestation of a co-employee. This conduct is clearly outside the ambit of assigned duties for employees of a nail salon business. Unquestionably, the incident herein does not support a finding that the intentional tort was employment-rooted or that it was incidental to the performance of Huy's duties as owner and manager of Five Star.
Additionally, the incident occurred after work hours and not on Five Star's premises. The evidence shows that Dung had completed his day's work and had returned home when the incident occurred, placing him outside the time and place factor of his employment. Thus, the incident that forms the basis of plaintiffs' claims was not related in time, place, and causation to Huy's employment duties at Five Star so that it could be attributable to Five Star's business. Therefore, under the LeBrane factors, Five Star is not vicariously liable for plaintiffs' claims since Huy was not in the course and scope of his employment when the incident occurred.
Intentional Injury Exclusion
Second, plaintiffs argue that there is a genuine issue of material fact as to Huy's intent to sexually molest Dung. Plaintiffs contend that the subjective-intent analysis found in Breland v. Schilling, 550 So.2d 609, 610 (La. 1989) is applicable here and argue that because this is a sexual molestation case "subjective intent" is required to determine whether this was an intentional tort and whether coverage is excluded. TIC counterclaims that because Dung was a minor when the incident occurred, intent is presumed as a matter of law. To prevail on its motion for summary judgment, TIC had to establish that Huy's sexual molestation of Dung was an intentional act.
The TIC insurance policy issued to Five Star contains an "Expected Or Intended Injury" exclusion, which states that insurance coverage was not provided to Five Star for "'[b]odily injury' or 'property damage' expected or intended from the standpoint of the insured." This type of exclusion is commonly referred to as an "intentional act" exclusion. Generally, the purpose of an intentional act exclusion is to deny liability insurance coverage to an insured in circumstances where the insured acts deliberately and intends or expects to inflict bodily injury to another. Doe v. Breedlove, 2004-0006 (La. App. 1 Cir. 2/11/05), 906 So.2d 565, 571-72.
The question before us is whether intent in the realm of the "Expected Or Intended Injury" exclusion refers to subjective intent of the insured or whether intent is presumed as a matter of law in cases involving child molestation. A review of Louisiana jurisprudence indicates that the relevant case law on sexual molestation of either a juvenile or an adult does not hinge on the specific language of the policy's intentional act exclusion, but rather holds that intent is always implied. See Doe, 906 So.2d at 575; Belsom v. Bravo, 94-876 (La. App. 5 Cir. 4/25/95), 658 So.2d 1304, 1306, writ denied, 95-1327 (La. 9/1/95), 659 So.2d 737. This court held in Doe v. Smith, 573 So.2d 238, 243, (La. App. 1 Cir. 1990), writ denied, 573 So.2d 1139 (La. 1991) that child molestation is one such rare instance where a factual determination of negligence or intentional conduct is inappropriate as a practical matter as it can only occur as a result of a deliberate act by the perpetrator. Thus, Louisiana jurisprudence recognizes as a matter of law that the act of child molestation is in and of itself a deliberate and intentional act. Belsom, 658 So.2d at 1306. Having concluded that as a matter of law, child molestation is an intentional act, there is no genuine issue of material fact as to whether the TIC insurance policy excludes coverage for plaintiffs' claims. Therefore, plaintiffs' claim in regard to the intentional injury committed by Huy, an alleged TIC insured, is excluded from coverage under the TIC insurance policy.
Our review of the record reveals that TIC has made a prima facie showing that Huy intentionally sexually molested Dung, and the bodily injury sustained by Dung was the result of Huy's intentional act. TIC has also made a prima facie showing that Five Star is not vicariously liable for plaintiffs' claims because Huy was not in the course and scope of his employment when the incident occurred. Accordingly, the burden shifted to plaintiffs to present evidence demonstrating that genuine issues of material fact remain. We conclude that plaintiffs have failed to meet their burden, and there is no coverage under the TIC insurance policy for any of plaintiffs' claims.
We have pretermitted discussion of plaintiffs' negligence claim because of our conclusion that the TIC insurance policy affords no coverage to plaintiffs due to the "Expected Or Intended Injury" exclusion. Resolution of the issue of negligence is not essential to, and would not affect plaintiffs' entitlement to summary judgment. See P.D. v. S.W.L., 2007-2534 (La. App. 1 Cir. 7/21/08), 993 So.2d 240, 247, writ denied, 2008-2770 (La. 2/13/09), 999 So.2d 1146. --------
CONCLUSION
Accordingly, since the record indicates that there are no genuine issues of material fact and that Transportation Insurance Company is entitled to judgment as a matter of law, the summary judgment was properly granted. Therefore, we affirm the judgment of the trial court. All costs of this appeal are to be borne by plaintiffs-appellants, My Phuong Tran and Dung Q. Tran.
AFFIRMED.