370 So.3d 1144
La. Ct. App.2023Background
- L.G.O. Properties hired Duxworth Roofing to repair the flat roof at 4033 Tulane Ave using torch-down (hot-torch) roofing techniques; a fire damaged the building on December 9, 2016.
- Lloyd’s of London, as subrogee for L.G.O., sued Duxworth alleging negligent use of torches caused the fire; Duxworth filed a third-party demand against its insurer James River.
- James River moved for summary judgment, invoking a CGL policy exclusion: “Any and All Torch Down Roofing Operations” (insurance does not apply to "property damage" arising out of the scheduled torch-down operations).
- After depositions (including Duxworth admitting use of hot tools/torches during the repair) and a fire investigator’s reports, the trial court granted James River’s motion and dismissed James River without prejudice.
- On appeal, the Fourth Circuit affirmed, concluding the exclusion unambiguously applied and relieved James River of any duty to defend or indemnify Duxworth for Lloyd’s claims.
Issues
| Issue | Plaintiff's Argument (Duxworth) | Defendant's Argument (James River) | Held |
|---|---|---|---|
| Whether genuine issues of material fact preclude summary judgment | Deposition and reports do not establish that the fire "arose out of" Duxworth’s torch use; factual dispute exists | Depositions and investigation show torch-down work occurred and the fire arose during those operations | No genuine issue — evidence shows fire arose during torch-down activity; summary judgment appropriate |
| Whether the Torch Down Roofing Exclusion is ambiguous | Phrase “arising out of” and undefined term “Torch Down Roofing Operations” are ambiguous, creating coverage doubt | Terms have ordinary meaning; exclusion plainly covers damage from torch-down roofing and hot tools | Not ambiguous — construed by ordinary meaning; exclusion applies to the facts |
| Whether James River owed a duty to defend/indemnify | Policy language and the pleadings require James River to defend unless coverage is unambiguously excluded | Policy explicitly removes duty to defend for suits seeking damages to which the insurance does not apply (i.e., torch-down exclusion) | No duty to defend or indemnify — plaintiff’s petition falls within exclusion, so insurer need not defend |
Key Cases Cited
- Babin v. Winn-Dixie Louisiana, Inc., 764 So.2d 37 (La. 2000) (summary judgment burden-shifting: mover must produce evidence, non-mover must show material factual dispute)
- Chatelain v. Flour Daniel Const. Co., 179 So.3d 791 (La. App. 4 Cir. 2015) (appellate de novo review of summary judgment and sources to consider)
- Orleans Parish School Bd. v. Lexington Ins. Co., 118 So.3d 1203 (La. App. 4 Cir. 2013) (undefined policy terms are given their ordinary meaning; absence of a definition alone does not create ambiguity)
- Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 630 So.2d 759 (La. 1994) (insurance contract interpreted under general rules of contract interpretation; enforce clear policy language)
- Doer v. Mobil Oil Corp., 774 So.2d 119 (La. 2000) (technical or specialized terms may bear their technical meaning when appropriate)
- Yount v. Maisano, 627 So.2d 148 (La. 1993) (insurer's duty to defend is determined from the plaintiff's petition; insurer must defend unless petition unambiguously excludes coverage)
- Crabtree v. Hayes-Dockside, Inc., 612 So.2d 249 (La. App. 4 Cir. 1992) (when an exclusion applies, insurer owes no duty to defend or indemnify)