Magnolia Financial Group LLC v. Antos et al

Filing 318

ORDER AND REASONS granting 238 Motion for Summary Judgment. All claims against Allied Insurance and Allied Property & Casualty Company are DISMISSED with prejudice. Signed by Judge Jane Triche Milazzo. (ecm) Modified text on 2/22/2018 (ecm).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MAGNOLIA FINANCIAL GROUP

CIVIL ACTION

VERSUS

NO: 15-7144

KENNETH ANTOS, ET AL

SECTION “H”

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment filed by
Defendants-in-Cross-Claim Allied Insurance and Allied Property and Casualty
Co. (collectively “Allied”) (Doc. 238). For the following reasons, the Motion is
GRANTED.
BACKGROUND
The facts and procedural history relevant to this Motion can be found in
this Court’s Order and Reasons of August 30, 2017. 1 Allied previously moved
to dismiss the claims against it under Rule 12(b)(6). The Court found that the
policy cited in the Cross-Claim did not provide coverage, but that Plaintiff’s
allegation that other policies existed was sufficient to state a claim against
Allied. 2 Allied now moves for summary judgment, presenting copies of all
policies that it issued to the Porges Defendants and an affidavit stating that
no other policies exist.

1
2

Doc. 206.
Doc. 206.

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LEGAL STANDARD
Summary judgment is appropriate if “the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations. . . , admissions, interrogatory answers, or other materials” “shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” 3 A genuine issue of fact exists only “if
the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” 4
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 5 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 6 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 7 “In response to a
properly supported motion for summary judgment, the nonmovant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the nonmovant on all issues as to which the
nonmovant would bear the burden of proof at trial.” 8 The Court does “not . . .
in the absence of any proof, assume that the nonmoving party could or would
3 Fed.

R. Civ. P. 56 (2012).
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
5 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
6 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
7 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
8 Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301
(5th Cir. 2004) (internal citations omitted).
4 Anderson

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prove the necessary facts.” 9 Additionally, “[t]he mere argued existence of a
factual dispute will not defeat an otherwise properly supported motion.” 10
LAW AND ANALYSIS
Allied moves for summary judgment dismissing all claims against it on
the basis that it issued no policy covering the Porges Defendants for the acts
alleged in Plaintiff’s Cross-Claim. Allied argues that the professional services
exclusions in those policies preclude coverage for acts that the Porges
Defendants rendered while performing services for other parties. The Court
previously held that the language of the Businessowners and Commercial
Umbrella policies that Allied extended to the Porges Defendants does not offer
coverage, but declined to dismiss the entirety of Plaintiff’s complaint against
Allied because of the allegation that other policies existed. Allied now presents
an affidavit from a knowledgeable corporate representative stating that the
only policies that Allied issued to the Porges Defendants are the ones that the
Court previously determined did not provide coverage for Plaintiff’s claims. 11
Plaintiff argues the acts of the Porges Defendants in agreeing to pay
Plaintiff in the event of a default, failing to pay Plaintiff when a default
occurred, and entering into a release with Becklean to continue payments to
him do not constitute professional services and thus do not fall under the
professional services exclusion in the Allied policies. However, Plaintiff
concedes that the Porges Defendants were providing professional accounting
and management services to various other defendants and effectively concedes
that the complained-of acts took place during that professional service. 12
Badon v. R J R Nabisco, Inc., 224 F.3d 382, 393–94 (5th Cir. 2000) (quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
10 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
11 See Doc. 238-5.
12 See Doc. 247 at 9–11.
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Plaintiff merely makes conclusory assertions that the acts do not qualify as
“pure professional services.” Plaintiff cites to absolutely no law supporting this
position. The Court sees no reason to alter its previous conclusion that the
professional services exclusion applies. 13
Plaintiff also argues that summary judgment is inappropriate because
Donald Porges testified that the Porges Defendants carried professional
services insurance coverage. At this point in the litigation, however, it is
Plaintiff’s burden to produce evidence sufficient to make out a claim against
Allied. Plaintiff has not provided the Court with any other policy and therefore
has failed to create an issue of material fact as to Allied’s coverage.
CONCLUSION
For the foregoing reasons, Defendant-in-Cross-Claim Allied’s Motion for
Summary Judgment is GRANTED. All claims against Allied Insurance and
Allied Property & Casualty Company are DISMISSED with prejudice.

New Orleans, Louisiana this 20th day of February, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

The Court also notes that Plaintiffs have not even made a showing that the acts
complained of are covered by the insuring agreements in the first place, as is Plaintiff’s
burden at this point.
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