211 So. 3d 1199
La. Ct. App.2017Background
- Joshua Petrozziello, a professional stunt performer, was injured during a film stunt while employed by Flypaper Productions, the named insured under Employers Fire Insurance Company’s policies.
- Petrozziellos sued multiple parties; all claims settled except their claim under Employers’ excess general liability policy concerning coverage for Joshua’s injury.
- The excess policy contains an "employee-injury exclusion" barring coverage for bodily injury to any "employee of any insured" arising out of employment.
- The policy also contains a "Separation of Insureds" clause (insurance applies separately to each insured against whom claim is made) and other endorsements anticipating multiple insureds.
- Trial court granted summary judgment for the Petrozziellos, holding the separation clause required applying the exclusion only to the sued additional insured (Noway), and because Joshua was not Noway’s employee the exclusion did not bar coverage.
- On appeal, the insurer argued the exclusion unambiguously applies to employees of any insured (including Flypaper); the appellate court reversed, holding the exclusion precludes coverage and rendering judgment for the insurer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the "employee-injury exclusion" bars coverage for injuries to an employee of the named insured | Separation-of-insureds means the policy is applied "separately to each insured" so "employee of any insured" should be read as limited to the sued insured (Noway); Joshua was not Noway's employee so exclusion doesn't apply | "Any insured" is plain and unambiguous; Joshua was an employee of Flypaper (an insured) and injured in course of employment, so the exclusion bars coverage | Exclusion is unambiguous and bars coverage for Joshua's claims (summary judgment for insurer rendered) |
| Whether the Separation of Insureds clause transforms the sued insured into the "only" insured for interpreting exclusions | Clause makes the sued insured the sole relevant insured for interpreting policy terms | Clause merely requires applying coverage separatel y to each insured; it does not convert the sued insured into the only insured or rewrite "any insured" to "the insured" | Separation clause does not limit or modify the plain meaning of "any insured" in the exclusion |
| Whether the exclusion is ambiguous because of other endorsements anticipating multiple insureds | Separation clause creates ambiguity requiring construction against insurer | Multiple-policy provisions and plain language demonstrate "any insured" contemplates multiple insureds; no ambiguity exists | No ambiguity; doctrine of contra proferentem not triggered; exclusion construed as written |
| Appropriateness of summary judgment for insurer | N/A (plaintiffs moved for summary judgment) | Insurer argued facts undisputed and law supports exclusion; summary judgment appropriate | Appellate court reversed plaintiffs' judgment and rendered summary judgment for insurer; dissent would have remanded for factual development |
Key Cases Cited
- Bonin v. Westport Ins. Corp., 930 So.2d 906 (La. 2006) (policy interpretation principles; construction against insurer if ambiguity remains)
- Osbon v. Nat'l Union Fire Ins. Co., 632 So.2d 1158 (La. 1994) ("any insured" interpreted to apply to all insureds)
- Sanders v. Ashland Oil, Inc., 656 So.2d 643 (La. Ct. App. 1995) (separation clause recognizes separate coverage but did not hold sued insured becomes the only insured for interpreting exclusions)
- Oaks v. Dupuy, 653 So.2d 165 (La. Ct. App. 1995) (rejecting strained construction that separation clause narrows an "any insured" exclusion)
- Spell v. Mallett, Inc., 957 So.2d 262 (La. Ct. App. 2007) ("employee of any insured" exclusion precluded coverage for named insured’s employee suing additional insureds)
- Petticrew v. ABB Lummus Global, Inc., 53 F. Supp. 2d 864 (E.D. La. 1999) (applying similar exclusion and rejecting argument that separation clause rendered exclusion ambiguous)