ROSEMARY LEDET, Judge.
This is a Hurricane Katrina, commercial property insurance coverage dispute. The sole issue presented is whether the trial court erred in granting a partial motion
When Hurricane Katrina struck the New Orleans area, the Orleans Parish School Board ("OPSB") was responsible for overseeing the operations of approximately 126 public schools in the area. Hurricane Katrina significantly damaged the OPSB's properties. "This litigation began when OPSB filed a lawsuit against its commercial property insurer [Lexington Insurance Company] on August 9, 2006, seeking recovery for damages sustained to certain insured properties as a result of Hurricane Katrina's August 29, 2005 landfall and its aftermath." Orleans Parish School Bd. v. Lexington Ins. Co., 11-0009, pp. 1-2 (La.App. 4 Cir. 10/5/11), 76 So.3d 592, 593-94.
Primary: $50 million per occurrence — Lexington;
First Excess Layer: $25 million per occurrence (from $50 million to $75 million) — shared
between Clarendon (60% of up to $25 million or $15 million) and
Essex (40% of up to $25 million or $10 million) per occurrence;
Second Excess Layer: $25 million per occurrence (from $75 million to $100 million) —
Westchester; and
Third Layer: $ 100 million per occurrence (from $ 100 million to $200 million) —
RSUI.
On November 30, 2011, the Excess Insurers filed motions for partial summary
The pertinent policy provisions regarding Ordinance or Law coverage (also referred to as "Code Upgrade" coverage) are set forth in the Lexington primary policy, which includes both an exclusion of such coverage and an endorsement adding back limited coverage. As noted, the excess policies follow the terms of the primary policy for purposes relevant to the issue presented in this case.
The exclusion is set forth in a "CAUSES OF LOSS — SPECIAL FORM" of Lexington's policy, which provides:
The endorsement adding back limited coverage is entitled an "Ordinance or Law" endorsement, numbered as "ENDORSEMENT # 002," and labeled as CP0405 (ed. 07/88); it provides:
In support of their respective motions, the Excess Insurers introduced evidence of the Lexington policy and their respective policies. They also introduced affidavits of representatives of the Defendant Insurers attesting that at no time within the two-year period after Hurricane Katrina (August 29, 2005 to August 29, 2007) did any of the Defendant Insurers extend in writing the two-year limitation period set forth in the Ordinance or Law Endorsement. Illustrative, RSUI's representative, Michael Koski, Vice President Commercial Property Claims, attested:
In opposing the motions for summary judgment, the OPSB contended that there were at least four genuine issues of material fact, which it enumerated as follows: (i) whether the Defendant Insurers' repeated extensions granted to the OPSB during the claims process included the two-year limitation period; (ii) whether the Defendant Insurers' actions constituted a waiver of the two-year limitation period; (iii) whether the Excess Insurers should be estopped from raising the two-year limitation period; and (iv) whether the two-year limitation period was an impossible condition that should not be enforced. The OPSB further contended that summary judgment was premature since discovery was incomplete.
In support of its impossible condition argument, the OPSB introduced an affidavit of its Chief Financial Officer, Stanley C. Smith, who attested:
In support of its waiver argument, the OPSB introduced reservation of rights letters from two of the Excess Insurers, Essex and RSUI. In those letters, the Ordinance or Law Exclusion is quoted; the Ordinance or Law Endorsement is mentioned, but not quoted. The two-year limitation period is not mentioned in those letters.
In support of its estoppel argument, the OPSB introduced a series of correspondence documenting the written agreements between the parties to extend both the discovery deadline in this litigation and the policy deadline for filing a proof of loss.
At the December 15, 2011 motions hearing, the trial court compared the two-year limitation period to a prescriptive period. Granting the motion, the trial court found the endorsement to be "clear and unambiguous," reasoning as follows:
On January 10, 2012, the trial court rendered its judgment finding that "any claim by the OPSB for increased construction costs be and the same are hereby dismissed to the extent that the repairs or replacement were not made by August 29, 2007 (2 years from the date of the loss)." The trial court declared that "there is no just reason for delay on this coverage issue," and it designated its judgment as a "final partial summary judgment as to the issue of coverage under the Ordinance or Law Coverage endorsement." See La. C.C.P. art. 1915 B. No written reasons were provided for the judgment.
The OPSB filed a motion for new trial. In its motion, the OPSB raised the following four issues: (i) whether the two-year limitation is null and unenforceable under
On April 16, 2012, the trial court denied the OPSB's motion for new trial. In so doing, the trial court provided the following reasons for judgment:
The instant appeal followed.
The standard of review of a trial court's ruling granting a motion for summary judgment, pursuant to La. C.C.P. arts. 966 and 967 and the jurisprudence, is well-settled and can be summarized as follows:
Teter v. Apollo Marine Specialities, Inc., 12-1525, pp. 6-7 (La.App. 4 Cir. 4/10/13), 115 So.3d 590, 597 (quoting Johnson v. Loyola University of New Orleans, 11-1785, pp. 7-8 (La.App. 4 Cir. 8/8/12), 98 So.3d 918, 923-24); see also McGowan v. Housing Authority of New Orleans, 12-1418, p. 12 (La.App. 4 Cir. 3/27/13), 113 So.3d 1143, 1148 (quoting Johnson, 11-1785 at pp. 7-8, 98 So.3d at 923-24).
Whether an insurance policy provides for, or precludes, coverage as a matter of law is an issue that can be resolved within the framework of a motion for summary judgment. Sumner v. Mathes, 10-0438, p. 6 (La.App. 4 Cir. 11/24/10), 52 So.3d 931, 935. Generally, the interpretation of an insurance policy is a question of law. Armenia Coffee Corp. v. American National Fire Ins. Co., 06-0409, p. 6 (La. App. 4 Cir. 11/21/06), 946 So.2d 249, 253. Likewise, the determination of whether a contract is clear or ambiguous is a question of law. Cadwallader v. Allstate Ins. Co., 02-1637, p. 4 (La.6/27/03), 848 So.2d 577, 580. On the other hand, when a contract is determined to be ambiguous, an issue of material fact exists; and the matter is not ripe for summary judgment. Johnson v. Orleans Parish School Bd., 10-1388, p. 11 (La.App. 4 Cir. 12/20/11), 80 So.3d 1175, 1183 (citation omitted).
In analyzing insurance policies, the following elementary legal principles apply:
On appeal, the OPSB's sole assignment of error is whether "[t]he trial court erred in its finding that the OPSB's claims for `increased construction costs' are dismissed with prejudice to the extent that the repairs or replacements of damaged properties were not made by August 29, 2007 (2 years from the date of loss)." The OPSB contends that there are four undisputed facts, which it enumerates as follows:
The OPSB contends that these undisputed facts render summary judgment improper because there are genuine issues of material fact. Alternatively, it contends that application of the law to these facts leads to the conclusion that the two-year limitation period is unenforceable.
For purposes of this discussion, we subdivide the OPSB's arguments into the following four categories: (i) ambiguous policy language, (ii) unenforceable conditional obligation, (iii) equitable principles of waiver and estoppel, and (iv) prematurity. We separately address each category.
The OPSB contends that the provisions of the Ordinance or Law Endorsement are ambiguous. The OPSB does not contend that the endorsement language "repairs or replacement" or "not to exceed two years" is ambiguous; rather, it contends that the endorsement language, tracked in the trial court's judgment, "increased construction costs" is ambiguous. According to the OPSB, because the phrase "increased construction costs" is not defined in the endorsement itself or anywhere else in the policies, it will have to speculate as to the meaning of the phrase. The OPSB thus contends the phrase is ambiguous, that this ambiguity implicates the rule of strict construction against the insurer, and that this ambiguity renders the granting of summary judgment inappropriate.
RSUI counters that simply because the OPSB expresses confusion does not render the policy language ambiguous. RSUI cites the principle that in order for policy language to be ambiguous, and thus invoke the rule of strict construction against an insurer, it must be susceptible to two or more reasonable interpretations. Zeitoun v. Orleans Parish School Bd., 09-1130, p. 5 (La.App. 4 Cir. 3/3/10), 33 So.3d 361, 365 (noting that "for the rule of strict construction to apply, the insurance policy must not only be susceptible to two or more interpretations,
Although the phrase "increased construction costs" is not defined in the policy itself, this fact alone does not make the endorsement ambiguous; rather, this fact requires a court give the words and phrases their generally prevailing meaning. Cadwallader, 02-1637 at p. 4, 848 So.2d at 580; see also American Deposit Ins. Co. v. Myles, 00-2457, p. 7 (La.4/25/01), 783 So.2d 1282, 1287. "Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning." McGuire v. American Southern Home Ins. Co., 07-0810, p. 3 (La.App. 4 Cir. 10/10/07), 969 So.2d 681, 684 (citing La. C.C. art.2047; Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; and Carbon v. Allstate Ins. Co., 97-3085, p. 4 (La.10/20/98), 719 So.2d 437, 439-40). "The rule that words in an insurance policy must be given their reasonable and ordinary interpretation applies notwithstanding the rule of construction against the insurer." 2 COUCH ON INS. § 22:15. Applying these principles, we find, as RSUI contends, that there is nothing ambiguous in the phrase "increased construction costs."
The OPSB next contends that regardless of whether the two-year limitation period is unambiguous, it is an unenforceable suspensive condition under the Civil Code articles governing conditional obligations. The OPSB characterizes the two-year limitation period to repair or replace as a suspensive condition under La. C.C. art. 1767, which provides that "[i]f the obligation may not be enforced until the uncertain event occurs, the condition is suspensive."
The OPSB's argument that the suspensive condition is unenforceable can be divided into two parts. First, it contends that RSUI should not be allowed to benefit from a policy provision that contains an impossible suspensive condition dependent solely on the Defendant Insurers' whim. La. C.C. arts. 1769 and 1770. Second, it contends that since the Defendant Insurers were at fault for the OPSB's inability to repair all of its properties within the two-year limitation period (thereby complying with the contract provision), the contract provision should be deemed ful-filled.
The OPSB's first argument is that the Defendant Insurers' improper claims handling procedures made it impossible for it to comply with the two-year limitation period. The OPSB thus characterizes the two-year period as an unenforceable, impossible condition under Article 1769. The OPSB also contends that the two-year limitation period was dependent solely on the Defendant Insurers' whim to make appropriate tenders and therefore is unenforceable under Article 1770.
RSUI counters that the OPSB misconstrues Articles 1769 and 1770. According to RSUI, the impossible suspensive condition and the whim-based suspensive condition would nullify any obligation of the Defendant Insurers to pay the increased cost of construction, not the suspensive condition. In support of this construction, RSUI quotes the language of Articles 1769 and 1770, which respectively provide that an impossible suspensive condition "makes the obligation null" and that a suspensive condition dependent solely on an obligor's whim "makes the obligation null."
Contrary to the OPSB's contention, we find that neither Article 1769 nor Article 1770 apply in this case.
Although an impossible condition is one contemplating the occurrence of an event that cannot take place, "Civil Code [Article 1769] is concerned with absolute impossibility." Hamilton v. Anco Insulation, Inc., 02-0221, p. 10 (La.App. 1 Cir. 2/14/03), 844 So.2d 893, 899-900 (finding policy condition that a claim for "bodily injury by disease" be made within thirty-six months of the policy's expiration was impossible under the facts of the case involving a mesothelioma victim, but was not an impossible condition in all cases as required by La. C.C. art. 1769). An impossible condition, under Article 1769, is not simply one that is impossible under the facts of a given case; rather, it is one that is impossible in all cases. Id. Stated otherwise, "impossible conditions, as contemplated in La. C.C. art. 1769, are those in which `no one can bring about the events of which they consist.'" Hamilton, 02-0221 at p. 10, 844 So.2d at 899-900 (quoting 5 Saúl Litvinoff, La. Civ. L. Treatise, THE LAW OF OBLIGATIONS § 5.5 p. 75 (2nd ed.2001)). Thus, the two-year limitation period, even assuming arguendo it was impossible in this Hurricane Katrina case, is not an impossible condition under Article 1769.
Nor is the Defendant Insurers' obligation to tender amounts due under their policies dependent solely on their whim. Whim means "[a] passing fancy, an impulse." Bryan A. Garner, BLACK'S LAW DICTIONARY 1627 (8th ed.2004). The comments to Article 1770 state that "[a]n event which is left to the obligor's whim is one whose occurrence depends entirely on his will, such as his wishing or not wishing something." La. C.C. art. 1770, Official Comment (d). The Defendant Insurers' obligation to pay under their policies is not solely dependent on their whim; it is governed by the insurance contracts.
The second part of the OPSB's unenforceable conditional obligation argument is that since the Defendant Insurers were at fault for the OPSB's inability to repair all of its properties within the two-year limitation period (thereby complying with the contract provision), the contract provision should be deemed fulfilled under La. C.C. art. 1772. As noted, Article 1772 provides that "[a] condition is regarded as fulfilled when it is not fulfilled because of the fault of a party with an interest contrary to the fulfillment." La. C.C. art.
Although the OPSB raised the impossibility argument in opposing the motions for summary judgment, it did not raise the issue of the Defendant Insurers' alleged fault under Article 1772 until it filed its motion for new trial.
In support of the bad faith argument, the OPSB cites La. R.S. 22:1892, which requires that insurers initiate loss adjustment for catastrophic property damage claims within thirty days of notification and make a written offer to settle property damage claims within thirty days of receiving satisfactory proof of loss.
The OPSB cites the affidavit of Mr. Smith, its Chief Financial Officer, as establishing that it lacked sufficient funds to make the repairs or replacements during the two-year limitation period. According to the OPSB, its lack of sufficient funds was further evidenced by the almost $71 million in repair invoices (which did not include repairs for all properties) it submitted to the Defendant Insurers in May 2007, just a few months before the end of the two-year limitation period. The OPSB points out that despite being presented with these figures, the Defendant Insurers tendered only $25 million (out of a total coverage of $200 million) within the two-year limitation period. The OPSB further points out that "[b]ecause the Defendant Insurers failed to make tenders under their policies, the OPSB was forced to file
In further support of its position, the OPSB cites a trio of out-of-state cases for the proposition that when an insurance company prevents an insured's compliance with a condition precedent (suspensive condition) to receive additional coverage, the insured is excused from performing that condition precedent. Pollock v. Fire Ins. Exchange, 167 Mich.App. 415, 423 N.W.2d 234 (1988); Zaitchick v. American Motorists Ins. Co., 554 F.Supp. 209, 211 (D.C.N.Y.1982); and Dickler v. CIGNA Property and Cas. Co., 957 F.2d 1088 (3d Cir.1992). By analogy, the OPSB contends that the Defendant Insurers should not be allowed to benefit from their own bad faith in failing to make timely tenders under their policies and withholding funds.
RSUI counters that under the policies a proof of loss was a prerequisite for any payment obligation of the insurers. It emphasizes that the OPSB sought extensions of the deadline to file a proof of loss and that it failed to file a full proof of loss until the trial court ordered it to do so in 2011. It contends that the OPSB's reliance on the Louisiana Bag case is misplaced; the Louisiana Supreme Court in the Louisiana Bag case simply held that an insurer must pay amounts "over which reasonable minds could not differ." Louisiana Bag, 08-0453 at p. 16, 999 So.2d at 1116. RSUI further counters that the trio of out-of-state cases on which the OPSB relies is distinguishable. According to RSUI, those cases simply establish that "an insurer must actively prevent compliance with policy provisions before an additional award is justified." RSUI contends that the OPSB failed to provide any facts that would justify either analogizing to those out-of-state cases or establishing that the Defendant Insurers were at fault under Article 1772. RSUI emphasizes that the OPSB itself delayed resolution of its claims by repeatedly seeking extensions of both the time to file a proof of loss and the discovery deadlines in this litigation. RSUI further emphasizes the OPSB's failure to seek an extension of the two-year limitation period.
RSUI still further emphasizes that Mr. Smith's affidavit neither mentions nor addresses any fault on the part of the Defendant Insurers in causing the delay in completing the repairs or replacements. Instead, his affidavit states that there were multiple "financial and non-financial challenges which needed to be overcome to get schools open within the first two years after Hurricane Katrina," including determining "where the needs of the children would be post Katrina." The affidavit expressly enumerates the following reasons why the OPSB believed that completing repairs and replacements within two years following Hurricane Katrina was impossible: "[t]he time for obtaining necessary funds, complying with Louisiana administrative law to get approval to rebuild or repair schools, perform due diligence with construction companies, issue contracts, in addition to the necessary construction time (which often included delays)."
RSUI points out that in the event the OPSB determined that it was impossible to repair or replace its properties within the two-year period, a mechanism was available to it under the policy — request a written extension of the two-year limitation period before the period elapsed. RSUI further points out that the OPSB requested and obtained numerous extensions of the proof of loss and discovery deadlines; however, the OPSB never requested an
The OPSB's reliance on bad faith jurisprudence, such as Louisiana Bag case, and the trio of out-of-state cases is misplaced. The Supreme Court in the Louisiana Bag case held that "an insurer need not pay a disputed amount in a claim for which there are substantial, reasonable and legitimate questions as to the extent of the insurer's liability or of the insured's loss." Louisiana Bag, 08-0453 at p. 16, 999 So.2d at 1116. The Louisiana Bag case thus stands simply for the position that penalties are appropriate when an insurer fails to pay the undisputed amount due. See French v. Allstate Indem. Co., 637 F.3d 571, 585 (5th Cir.2011).
As a commentator points out, the trio of out-of-state cases on which the OPSB relies is factually similar in the following respect:
Johnny Parker, Replacement Cost Coverage: A Legal Primer, 34 Wake Forest L.Rev. 295, 323 (1999).
Both the Louisiana Bag case and the trio of out-of-state cases address the issue of an insurer's bad faith during the claims process. The gist of the OPSB's argument is that there is a genuine issue of material fact in this case regarding the Defendant Insurers' alleged fault — bad faith — and that summary judgment was therefore inappropriately granted. Addressing this argument, the trial court at the hearing on the motion for new trial noted that the OPSB was requesting that it "reform the contract and nullify that provision [the suspensive condition]." The trial court further noted that this argument was premised on the Defendant Insurers' failure to tender sufficient funds. In its reasons for judgment, the trial court noted that the "OPSB claims, however, that Westchester and RSUI are at fault for the OPSB's inability to repair all of its properties within the two year time period thereby complying with the contract provision, and because of that, the contract provision should be deemed fulfilled." Finding the policy language clear and unambiguous, the trial court denied the motion for new trial and thereby implicitly rejected the OPSB's reliance on Article 1772 to excuse compliance with the suspensive condition. We find no error in the trial court's ruling.
The application of the prevention of performance doctrine to excuse an insured from the clear and unambiguous requirement of repairing or replacing as a condition precedent to recovery under the policy has been rejected by other courts. See Florida Ins. Guar. Ass'n v. Somerset Homeowners Ass'n., Inc., 83 So.3d 850, 852 (Fla.App. 4 Dist.2011) (citing Buckley Towers Condo., Inc. v. QBE Ins. Corp., 395 Fed.Appx. 659 (11th Cir.2010)). As the Buckley court explained:
Somerset Homeowners, 83 So.3d at 852 (quoting Buckley, 395 Fed.Appx. at 663 (quoting Acosta, Inc. v. Nat'l. Union Fire Ins. Co., 39 So.3d 565, 573 (Fla. 1st DCA 2010))). As noted, the trial court in this case gave similar reasons for implicitly rejecting the OPSB's reliance on Article 1772 (the doctrine of prevention of performance). We find no error in the trial court's ruling. We thus find the OPSB's reliance on Article 1772 (the doctrine of frustration of performance) misplaced.
The OPSB next contends that the trial court erred in granting summary judgment because genuine issues of material fact exist as to "whether the Defendant Insurers extended the two-year period OR should be estopped and/or waived their right to enforce the two-year period." The record reflects that the Defendant Insurers, through their affidavits, established that they never extended the two-year limitation period. The OPSB presented no evidence to the contrary. Nonetheless, as the OPSB contends, under the equitable principles of waiver and estoppel, the conduct of the parties may modify the coverage provided by the policy. 15 William Shelby McKenzie, H. Alston Johnson, III, La. Civ. L. Treatise, INSURANCE LAW & PRACTICE § 1:5 (4th ed.2012). We separately address each of the equitable theories of waiver and estoppel.
The waiver theory was extensively reviewed by this court in Arceneaux v. Amstar Corp., 06-1592 (La.App. 4 Cir. 10/31/07), 969 So.2d 755. This court noted that the two seminal Louisiana Supreme Court cases on waiver are Tate v. Charles Aguillard Ins. & Real Estate, Inc., 508 So.2d 1371 (La.1987); and Steptore v. Masco Constr. Co., 93-2064 (La.8/18/94), 643 So.2d 1213. Arceneaux, 06-1592, p. 10, 969 So.2d at 765. We further noted that the Supreme Court in Tate extensively reviewed the out-of-state jurisprudence on waiver; rejected the then-majority view that "waiver cannot be invoked to broaden coverage to include risks not included or expressly excluded from the insurance contract," Id.; and held that "`the best view is that waiver may apply to any provision of an insurance contract under which the insurer knowingly and voluntarily elects to relinquish his right, power or privilege to avoid liability, even though the effect may bring within coverage risks originally excluded or not covered.'" Id. (quoting Tate, 508 So.2d at 1375).
In Steptore, the Supreme Court reaffirmed the principle it set forth in Tate that any policy provision can be waived; and it further defined the proof required to establish a waiver by enumerating the following four elements of waiver: (1) an existing legal right; (2) knowledge of the existence of that right; and (3) either (a) an actual intention to relinquish the right, or (b) conduct so inconsistent with the intent to enforce the right so as to induce a reasonable belief that the right has been relinquished. Arceneaux, 06-1592, p. 14, 969 So.2d at 767 (citing Steptore, 93-2064 at p. 4, 643 So.2d at 1216).
The OPSB contends that the Defendant Insurers waived their right to raise the two-year limitation period because they failed to raise it in either their reservation of rights letters or their original answers that they filed within the two-year period. The OPSB further contends that the two-year limitation period is an affirmative defense that under La. C.C.P. art. 1005 is required to be specifically pleaded in a defendant's answer. The OPSB still further contends that the requirement of specifically pleading an affirmative defense is not satisfied by pleading an insurance policy "in extenso." Dixie Savings and Loan Ass'n v. Pitre, 99-154, pp. 23-24 (La.App. 5 Cir. 7/27/99), 751 So.2d 911, 924-25.
The OPSB argues that the Defendant Insurers' failure to specifically mention the two-year limitation period in their original answers, which tracked the language of their reservation of rights letters, resulted in a waiver of their right to assert the two-year condition. The OPSB further argues that since the Defendants Insurers cited only the title to the Ordinance or Law Endorsement in their original answers and reservation of rights letters, they "denied all coverage for ordinance or law which is a clear misrepresentation of the policy coverages, or a failure to divulge pertinent facts, such as the fact that Ordinance or Law coverage was added back to the policy by endorsement (with conditions)."
RSUI responds that the OPSB's contention is not that the Defendant Insurers failed to cite the applicable endorsement provision in their reservation of rights letters and original answers; rather the OPSB's contention is that they failed to "quote the applicable provision rather than citing it and providing the number of the applicable endorsement form." RSUI argues that this contention is without merit. RSUI further argues that the Defendant Insurers pleaded the Ordinance or Law
In the March 28, 2006 reservation of rights letter, RSUI's Vice President, Mr. Koski, advised the OPSB that it had been investigating the OPSB's claim "under a complete reservation of rights" and that "one or more of the following provisions may be applicable to the loss." The listed provisions that followed included both the Ordinance or Law Exclusion and the Ordinance or Law Endorsement. The Ordinance or Law Exclusion was quoted, but the Ordinance or Law Exclusion was referenced as follows: "ENDORSEMENT # 002-ORDINANCE OR LAW COVERAGE." RSUI's letter closed with the following statement: "Please be further advised that RSUI does not waive any provision or stipulation of the policy or waive any right or defense under that policy whether or not identified above. RSUI reserves all of its rights under the policy and applicable law."
In their original answers and affirmative defense, filed in January 2007, the Defendant Insurers quoted the Ordinance or Law Exclusion in full, but only cited the Ordinance or Law Endorsement by title and number.
Contrary to the OPSB's contention, the Defendant Insurers expressly reserved their rights in their reservation of rights letters that were sent to the OPSB before the expiration of the two-year period. "A prompt reservation of rights letter serves the purpose of negating the inference of a voluntary relinquishment of a known right to contest coverage." Arceneaux, 06-1592 at p. 16, 969 So.2d at 768 (citing Robert Keeton, Insurance Law § 6.6 (1971)). In both their reservation of rights letters and original answers, the Defendant Insurers cited the pertinent provision — the Ordinance or Law Endorsement — by title, endorsement number, form number, and relevant endorsement heading. The Defendant Insurers, as RSUI contends, thereby fairly apprised the OPSB of their intent to rely on the
Nor do we find persuasive the OPSB's contention that the Defendant Insurers had a duty to inform them of the two-year limitation period. "An insured cannot, absent a statute to the contrary, ordinarily avoid a limitations provision on the grounds of not having been advised of its existence by the insurer." 2 Allan Windt, INSURANCE CLAIMS & DISPUTES, REPRESENTATION OF INSURANCE COMPANIES AND INSUREDS, § 9.5 (5th ed.2007) (citing Stephens v. Audubon Ins. Co., 27,658 (La.App. 2 Cir. 12/6/95), 665 So.2d 683, 686). An insured is presumed to know the contents of its policy. Id.; see also Isidore Newman School v. J. Everett Eaves, Inc., 09-2161, pp. 8-9 (La.7/6/10), 42 So.3d 352, 357. "Any feigned ignorance of the policy's endorsements and exclusions does not affect their validity." Piligra v. America's Best Value Inn, 10-254, p. 13 (La.App. 3 Cir. 10/6/10), 49 So.3d 479, 487-88. An insured thus cannot "blame the insurance company for his or her own failure to read the policy." Windt, supra. The OPSB's reliance on the waiver doctrine is thus misplaced.
To establish an estoppel claim, a party is required to prove the following three elements: "(1) A representation by conduct or work; (2) justifiable reliance thereon; and (3) a change of position to one's detriment because of the reliance on such representation." Case v. Louisiana Medical Mut. Ins. Co., 624 So.2d 1285, 1290 (La.App. 3rd Cir.1993); see also South Central Bell Telephone v. Rouse Company of Louisiana, 590 So.2d 801, 804 (La.App. 4th Cir.1991) (citation omitted).
The OPSB's estoppel argument is based on the series of correspondence documenting the written agreements between the parties to extend the policy deadline for filing a proof of loss and the discovery deadline in this suit. The OPSB contends that it relied on these extensions and that it believed these extensions included all time limitations under its policy. RSUI counters that the series of correspondence on which the OPSB relies related to providing papers — the proof of claim required under the policy and the discovery responses in this litigation. RSUI further counters that the OPSB presented no evidence that the Defendant Insurers made any representations supporting the OPSB's position.
As noted, the Defendant Insurers presented affidavits in support of their motions for summary judgment establishing that the Defendant Insurers never granted a written an extension of the two-year limitation period. The OPSB, as RSUI contends, failed to present
In sum, we find the OPSB's reliance on the equitable theories of waiver and estoppel misplaced.
The OPSB contends, as it did before the trial court, that the motion for summary judgment was decided prematurely. The OPSB maintains that the trial court erred by deciding the motion for summary judgment because important discovery was not completed. In support, the OPSB cites La. C.C.P. art. 966 C(1), which provides that summary judgment should only be considered "[a]fter adequate discovery or a case is set for trial."
Construing Article 966, this court has held that "while parties must be given fair opportunity to carry out discovery and present their claim, there is no absolute right to delay action on motion for summary judgment until discovery is complete." Thomas v. North 40 Land Development, Inc., 04-0610, p. 31 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, 1179 (quoting Butzman v. Louisiana Power and Light Co., 96-2073, p. 4 (La.App. 4 Cir. 4/30/97), 694 So.2d 514, 517). Similarly, construing article 966, the Louisiana Supreme Court has held that "[t]he only requirement is that the parties be given a fair opportunity to present their claim. Unless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact." Simoneaux v. E.I. du Pont de Nemours and Co., 483 So.2d 908, 912-13 (La. 1986).
When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent (La.C.C. art.2046); and additional discovery cannot change the result. See Hamilton v. Willis, 09-0370, p. 3 (La.App. 4 Cir. 11/4/09), 24 So.3d 946, 948 (rejecting argument that summary judgment was premature, noting that "[a]dditional discovery cannot change the motorsports exclusion, which we find to be clear and unambiguous and not leading to absurd consequences"); River Bend Capital, 10-1317 at p. 5, 63 So.3d at 1096 (holding that "[f]urther discovery ... is unnecessary where the language is clear and unambiguous as here"). Such is the case here. Thus, we find no abuse of discretion in the trial court's finding that summary judgment was appropriate at this procedural juncture.
For the foregoing reasons, the judgment of the trial court is affirmed.
Edgewood, 782 F.Supp.2d at 729-30 (citations omitted).
RSUI cites Edgewood only for the proposition that even if it had failed to raise the two-year limitation period it would not have waived the defense. Since RSUI did raise the two-year limitation period in this case, we find it unnecessary to determine whether, as the OPSB contends, Edgewood is distinguishable.
Moreover, Clarendon adopted "the affirmative defenses of each and every similarly situated defendant."
