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Lack of Final Determination Precludes Insurance Coverage Summary Judgment

by Todd A. Rossi

Louisiana courts preclude summary judgments on insurance coverage matters until the underlying litigation is resolved and the factual basis for the insured’s liability is determined. For example, in Vidrine v. Constructors, Inc., 953 So.2d 193 (La. App. 3rd Cir. 2007), welders, pipe fitters and their helpers brought action against the employer and plant owner to recover for asbestos exposure allegedly arising during a plant renovation. One of the insurers filed a motion for summary judgment, asserting there was no coverage based on an exclusionary provision for bodily injury caused or aggravated "by the conditions of your employment." Under that provision, the employee’s last day of last exposure had to occur during the policy period. The insurer based its summary judgment on the plaintiffs’ petition and discovery responses that alleged asbestos exposure beyond the last day of the policy period.

While the trial court granted the insurer’s summary judgment, the Appellate Court reversed, recognizing thatdespite Constructors failure to show the alleged injury occurred within the policy period, the insurer’s pleadings did not foreclose a factual finding that one or several plaintiffs was not injured while still working for Constructors and thereby covered under the insurance policy. The court stated that it was premature to rule on Eagle’s obligation to indemnify until there was a final determination of if and when the asbestos exposure occurred and if any post-period exposure caused their injuries. Accordingly, the Vidrine court recognized that any coverage determination, prior to a factual finding related to the underlying tort suit on which coverage was disputed, was premature. Vidrine may make summary judgment in favor of the insurer less likely, and provides insureds with a legal basis to maintain an action for coverage pending the final outcome of the underlying tort suit.

Full post as published by Louisiana Law Blog on October 25, 2007 (boomark / email).