Injury Leaving Porta-Potty not Covered by CGL for Failure of Condition
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Posted on February 11, 2022 by Barry Zalma
Mitchell Baudoin sued seeking recovery for personal injuries received in a construction site accident. The trial court granted a motion for summary judgment filed by defendant, Accident Insurance Company (“AIC”), and dismissed plaintiff’s claims as to it. In Mitchell Baudoin v. American Glass And Mirror Works, Inc., et al. No. 20-541, Court of Appeals of Louisiana, Third Circuit (February 2, 2022) the Court of Appeals resolved the coverage issue.
FACTS
Charles Goudeau d/b/a Charles Goudeau General Contractor (“Goudeau”) was the general contractor for a new construction project in Breaux Bridge, Louisiana. On March 6, 2017, plaintiff was installing flooring at the aforementioned construction site for Southern Tile Company, Inc. (“Southern Tile”) and was injured when he was struck by a vehicle being operated by Chad Fritz (“Fritz”) after exiting a portable restroom.
Plaintiff sued Goudeau and his insurer, AIC, among others, for personal injuries. AIC issued a commercial general liability policy (“CGL policy”) to Goudeau.
Plaintiff’s petition, in relevant part, alleged that plaintiff’s accident and attendant injuries were caused by the negligence of Goudeau.
AIC sought summary judgment alleging a lack of coverage on the basis that an endorsement within the CGL policy issued to Goudeau barred coverage for plaintiff’s claims. AIC contended there is no coverage for plaintiff’s claims because Goudeau failed to comply with conditions set forth in its Endorsement Form 3007, entitled “Contractors Special Conditions” (“Contractors Special Conditions endorsement”), which required a written indemnity agreement from the independent contractor holding the insured harmless and obtained certificates of insurance from the independent contractor indicating that the insured is named as an additional insured and that coverage is maintained with minimum limits of $500,000 per occurrence.
AIC asserted that prior to commencement of any work on the premises, its Contractors Special Conditions endorsement required Goudeau to adhere to the terms of the endorsement and obtain the requisite documents from subcontractors he obtained for the job as a condition of coverage for any claim for damage based, in whole or in part, upon work performed by independent contractors. Goudeau had not obtained any of the requisite documents and had not provided any evidence of certificate of liability insurance naming Goudeau as an additional insured from the subcontractors, which includes Southern Tile and American Glass.
At the conclusion of the hearing, the trial court accepted AIC’s contention the Contractors Special Conditions endorsement barred coverage for plaintiff’s claims against Goudeau.
LAW AND DISCUSSION
The conditions precedent to coverage requiring Goudeau to obtain particular indemnity agreements from subcontractors performing work on the construction project, as well as to obtain status as an additional insured under those subcontractors’ insurance policies.
The initial burden to establish that a claim falls within the policy coverage is on the plaintiff. If the wording of the policy is clear and expresses the parties’ intent, the policy must be enforced as written. This rule is applicable even to policy provisions that limit the insurer’s liability or place restrictions on policy obligations.. As the conditions for coverage under the liability policy clearly were not met, the trial court did not err in granting summary judgment in favor of the liability insurer.
The trial court did not err in granting AIC’s motion for summary judgment and dismissing plaintiff’s claims against it.
ZALMA OPINION
Louisiana is an interesting jurisdiction that allows a plaintiff to sue the insurer of the defendant in addition to the defendant. In this case the insurer had a mandatory condition requiring all subcontractors to obtain an indemnity agreement that names the insured as an additional insured and obtain evidence that the insurance existed. The insured admitted his contracts with the subcontractors were oral and the conditions were not met. By so doing the insured lost the right to indemnity or defense costs from AIC.
© 2022 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders.
He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business.
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Jury’s Findings Interpreting Insurance Contract Affirmed
Post 5105
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Madelaine Chocolate Novelties, Inc. (“Madelaine Chocolate”) appealed the district court’s judgment following a jury verdict in favor of Great Northern Insurance Company (“Great Northern”) concerning storm-surge damage caused by “Superstorm Sandy” to Madelaine Chocolate’s production facilities.
In Madelaine Chocolate Novelties, Inc., d.b.a. The Madelaine Chocolate Company v. Great Northern Insurance Company, No. 23-212, United States Court of Appeals, Second Circuit (June 20, 2025) affirmed the trial court ruling in favor of the insurer.
BACKGROUND
Great Northern refused to pay the full claim amount and paid Madelaine Chocolate only about $4 million. In disclaiming coverage, Great Northern invoked the Policy’s flood-exclusion provision, which excludes, in relevant part, “loss or damage caused by ....
Failure to Name a Party as an Additional Insured Defeats Claim
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Contract Interpretation is Based on the Clear and Unambiguous Language of the Policy
In Associated Industries Insurance Company, Inc. v. Sentinel Insurance Company, Ltd., No. 23-CV-10400 (MMG), United States District Court, S.D. New York (June 16, 2025) an insurance coverage dispute arising from a personal injury action in New York State Supreme Court.
The underlying action, Eduardo Molina v. Venchi 2, LLC, et al., concerned injuries allegedly resulting from a construction accident at premises owned by Central Area Equities Associates LLC (CAEA) and leased by Venchi 2 LLC with the USDC required to determine who was entitled to a defense from which insurer.
KEY POINTS
Parties Involved:
CAEA is insured by Associated Industries Insurance Company, Inc. ...
Exclusion Establishes that There is No Duty to Defend Off Site Injuries
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Attack by Vicious Dog Excluded
In Foremost Insurance Company, Grand Rapids, Michigan v. Michael B. Steele and Sarah Brown and Kevin Lee Price, Civil Action No. 3:24-CV-00684, United States District Court, M.D. Pennsylvania (June 16, 2025)
Foremost Insurance Company (“Foremost”) sued Michael B. Steele (“Steele”), Sarah Brown (“Brown”), and Kevin Lee Price (“Price”) (collectively, “Defendants”). Foremost sought declaratory relief in the form of a declaration that
1. it owes no insurance coverage to Steele and has no duty to defend or indemnify Steele in an underlying tort action and
2. defense counsel that Foremost has assigned to Steele in the underlying action may withdraw his appearance.
Presently before the Court are two ...
ZIFL Volume 29, Issue 10
The Source for the Insurance Fraud Professional
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Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/ You can read the full issue of the May 15, 2025 issue at http://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-05-15-2025.pdf
This issue contains the following articles about insurance fraud:
Health Care Fraud Trial Results in Murder for Hire of Witness
To Avoid Conviction for Insurance Fraud Defendants Murder Witness
In United States of America v. Louis Age, Jr.; Stanton Guillory; Louis Age, III; Ronald Wilson, Jr., No. 22-30656, United States Court of Appeals, Fifth Circuit (April 25, 2025) the Fifth Circuit dealt with the ...
Professional Health Care Services Exclusion Effective
Post 5073
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This opinion is the recommendation of a Magistrate Judge to the District Court Judge and involves Travelers Casualty Insurance Company and its duty to defend the New Mexico Bone and Joint Institute (NMBJI) and its physicians in a medical negligence lawsuit brought by Tervon Dorsey.
In Travelers Casualty Insurance Company Of America v. New Mexico Bone And Joint Institute, P.C.; American Foundation Of Lower Extremity Surgery And Research, Inc., a New Mexico Corporation; Riley Rampton, DPM; Loren K. Spencer, DPM; Tervon Dorsey, individually; Kimberly Dorsey, individually; and Kate Ferlic as Guardian Ad Litem for K.D. and J.D., minors, No. 2:24-cv-0027 MV/DLM, United States District Court, D. New Mexico (May 8, 2025) the Magistrate Judge Recommended:
Insurance Coverage Dispute:
Travelers issued a Commercial General Liability ...
A Heads I Win, Tails You Lose Story
Post 5062
Posted on April 30, 2025 by Barry Zalma
"This is a Fictionalized True Crime Story of Insurance Fraud that explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is designed to help everyone to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime."
Immigrant Criminals Attempt to Profit From Insurance Fraud
People who commit insurance fraud as a profession do so because it is easy. It requires no capital investment. The risk is low and the profits are high. The ease with which large amounts of money can be made from insurance fraud removes whatever moral hesitation might stop the perpetrator from committing the crime.
The temptation to do everything outside the law was the downfall of the brothers Karamazov. The brothers had escaped prison in the old Soviet Union by immigrating to the United...
