This is an appeal from a summary judgment in favor of Hartford Fire Insurance Company and Nutmeg Insurance Company.
The plaintiffs filed an action against the City of Jeanerette on December 21, 1993 for damages allegedly caused by repeated drainage problems and sewerage overflow occurring since they occupied the residence from 1978. The City then filed an exception of prescription which was granted as far as property damage, but denied as to general damages, citing Small v. Avoyelles Parish Police Jury,
In June of 1994, the City answered and filed a third party demand against the United States Fidelity and Guaranty and United Community Insurance Companies, claiming coverage and a duty to defend. In February 1995, an amending third party demand was filed by the City, naming Hartford Fire Insurance Company. In February of the following year, the plaintiffs filed a direct action against the City’s insurers, ^Hartford and seven other insurance companies. Though Hartford was named, it is undisputed the
Nutmeg moved for summary judgment on the basis that no coverage should be provided on this occurrence as no claim had been filed during the policy period. The trial court granted summary judgment finding that neither the City nor the plaintiffs made a claim with the defendant, Nutmeg, during the policy period.
Appellate courts review summary judgments de novo applying the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Ponthier v. Brown’s Mfg., Inc.,
Act 9 of the 1996 Special Session amended Article 966 by adding:
A. (2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be ^construed to accomplish these ends. Article 966 was also amended in the Act.
C. After adequate discovery or after a ease is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted against an adverse party who fails to make a showing sufficient to establish the existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.
In Dinger v. Shea,
In other words, pursuant to the statute, summary judgment is now favored and should be applied liberally.
In the past, any doubt regarding the existence of material facts was to be resolved against granting the summary judgment, even if grave doubts existed as to a party’s ability to establish disputed facts at trial. Penton [v. Clarkson],633 So.2d 918 (citations omitted). The amendment does not change the law regarding burdens of proof, as the mover is still required to prove the absence of a genuine issue and his entitlement to judgment. Short v. Griffin[Giffin],96-0361 (La.App. 4 Cir. 8/21/96) ;682 So.2d 249 ; Walker v. Kroop,96-0618 (La.App. 4 Cir. 7/24/96) ;678 So.2d 580 . However, it now appears, based on the new language of section (C), that in order to rebut a showing made by the mover of the non-existence of a genuine issue of material fact, the nonmoving party will be held to a higher standard of proof, i.e. a non-moving party must sufficiently establish the existence of proof of an essential element of his claim on which he is to bear the burden of proving at trial.
The relevant portions of the Nutmeg policy states on page one:
This is a “claims made” policy, please read all provisions and contact your agent if you have any questions. Your policy applies only to claims for injury or damage made against you after the inception date and before the expiration date of your policy
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Your policy applies to bodily injury, property damage, personal injury, advertising injury, errors or omissions injury or employee benefits ^injury only if a claim for damages because of the bodily injury, property damage, personal injury, advertising injury, errors or omissions injury or employee benefits injury is first made against any insured during the policy period ...
The insurance policy between the City and Nutmeg is a “claims made” policy. A “claims made” insurance policy is one in which coverage attaches only if the negligent harm is discovered and reported within the policy period. Murray v. City of Bunkie, 96-297, p. 4 (La.App. 3 Cir. 11/6/96),
“An insurance policy is a contract and has the effect of law between the parties.” La.Civ.Code art. 1983; Spurrell v. Ivey, 25,359, 25,360, p. 8 (La.App. 2 Cir. 1/25/94);
The appellant maintains that the trial court improperly granted Nutmeg’s motion in light of Murray. This Court in Murray held that under Louisiana’s Direct Action Statute, a tort victim’s rights vest at the time the tort was committed and those rights could not be taken away because of' the insured’s failure to comply with notification terms of its claims-made policy. In Murray, the insurer provided a claim-made professional liability policy to the City of Bunkie. During the policy period, plaintiff |ssent a demand letter to the City calling for money damages for injuries he suffered while incarcerated in the city jail. The City failed to give notice of the demand during the policy period to its insurer as required for coverage under the terms of the policy. Plaintiff subsequently sued the City after the policy lapsed. In finding for the plaintiff, the Court held that notice provisions could not be used as a coverage defense against third parties who had no knowledge of the provision and who had taken steps to pursue their legal remedies. Murray,
Likewise, in Williams v. Lemaire,
The cases cited stand only for the proposition that under certain situations a notification provision in a claims-made policy may violate public policy and therefore be unenforceable to a third party to the insurance agreement. See Livingston,
Under the Nutmeg policy, coverage is triggered when a claim is made to thejjinsured. The policy defines a claim as “a demand received by any insured for damages alleging
The power to trigger coverage by Nutmeg lay not with the insured, but on the tortfeasor by notifying the insured. In support of Nutmeg’s motion for summary judgment, the deposition of the plaintiff, Ms. Pittman was introduced in evidence. Ms. Pittman states that she did not notify the City until March of 1993, three years after the policy period. However, the Pittmans contacted the City on many occasions beginning as early as 1984 after their dogs became ill. They made repeated visits to the City about the problem, explaining the problem to the City Council and the City’s Public Works Director, Jack Reeves. In response to the plaintiffs ongoing complaints and problems, the City would go to the Pittmans’ property and blow out the sewer lines. In the beginning, the City would blow out the lines four times per year. Then it began to blow the lines out eight times a year, and then ten times per year. Eventually, the City was blowing the lines out every month. In 1991, the City relaid the Pittmans’ sewer lines which still did not correct the problem.
Whether or not the City received a demand for damages is a material fact. Even in the light of amended La.Code Civ.P. art. 966 favoring summary judgment, we feel that from the facts presented, Nutmeg has not met its burden of showing that there is no genuine issue as to whether the City had received sufficient notice from these numerous contacts with the plaintiff.
Accordingly, we find the trial court incorrectly found summary judgment proper in this case. The judgment of the trial court is reversed and the matter is remanded for further proceedings. The costs of the appeal are to be paid by the defendant; all other costs are to await further proceedings.
^REVERSED AND REMANDED.