Loston v. St Mary Parish et al

Filing 107

MEMORANDUM RULING re 59 MOTION for Summary Judgment filed by Allstate Indemnity Co. Signed by Judge Terry A Doughty on 4/5/2019. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
KE'VON TRAMAR LOSTON

CIVIL ACTION NO. 6:16-cv-00964

VERSUS

JUDGE TERRY A. DOUGHTY

ST. MARY PARISH SHERIFF'S
OFFICE, ET AL.

MAG. JUDGE PATRICK J. HANNA

RULING
Pending before the Court is a Motion for Summary Judgment [Doc. No. 59] filed by
Allstate Insurance Company (“Allstate”). Allstate moves the Court for a declaration that it does
not provide insurance coverage for the claims asserted by Plaintiff Ke'von Loston (“Loston”)
against Defendant Richelle Bowman (“Bowman”) and that it does not have a duty or a
contractual obligation to provide legal representation or a defense to the claims asserted by
Loston.
On September 25, 2018, Loston filed a response [Doc. No. 78] indicating that he did not
oppose the Motion for Summary Judgment. Bowman filed a Memorandum in Opposition to the
Motion for Summary Judgment [Doc. No. 98].
For the following reasons, Allstate’s Motion for Summary Judgment is GRANTED.
I.

FACTS AND PROCEDURAL HISTORY
On or about July 2, 2015, Loston was arrested by the St. Mary Parish’s Sheriff’s Office

for the crime of larceny or theft of an ATV. However, the charges were later dismissed.
The stolen ATV 4-wheeler belonged to Bowman’s son. Loston alleges that, subsequent
to his arrest, Bowman posted a photograph of him on Facebook and stated that he was the
“thug” who stole her son’s ATV.

On June 15, 2016, Loston brought suit in the United States District Court, Western
District of Louisiana, Lafayette Division, asserting claims against the St. Mary Parish Sheriff’s
Office, Sheriff Mark A. Hebert, Sheriff Deputy Sennet Wiggins, Sheriff Deputy Beau Martin
(collectively “the Sheriff’s Office Defendants”), and Bowman. Loston alleges that the Sheriff’s
Office Defendants, operating under the color of law, wrongfully abused the judicial process to
have him arrested and subsequently jailed for felony theft of an ATV. Loston further alleges that
Bowman publicly defamed him by “circulating false allegations on social media resulting in
thousands of views by persons in the community and beyond.” [Doc. No. 1, ¶ 7].
Loston further alleges that, “[a]s a direct result of Defendants’ misconduct, which
resulted in Plaintiff’s wrongful arrest, and detention, Plaintiff sustained substantial damages,
including, but not necessarily limited to, mental and psychological anguish, and lost wages
during and after the period of detention.” Id. at ¶ 8.
Loston explains that he brought suit against the Sheriff’s Office Defendants and Bowman
“to redress the deprivation under color of law of Plaintiff’s rights as secured by the United States
and Louisiana Constitutions and the defamation, with resulting damages, including, but not
limited to mental and psychological anguish.” Id. at ¶ 9.
However, in paragraph 36 of the Complaint, Loston makes clear that he brought suit
against Bowman for only the following:
A. In making false and defamatory statements;
B. In making false and defamatory statements and publishing same on social media that
she knew or should have known would reach a wide variety of the public;
C. In causing embarrassment and injuries to Plaintiff in damaging his reputation; and
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D. All other acts of negligence, etc. that will be shown at the trial of this matter.
[Doc. No. 1, ¶ 36].
Allstate issued a standard homeowner’s policy to Bowman, bearing policy number
921098588, with a coverage period of August 19, 2014, to August 19, 2015.
Subsequent to the filing of Loston’s Complaint, Bowman tendered the claims asserted to
Allstate for defense and indemnity.
On December 21, 2018, Judge John W. deGravelles granted summary judgment in favor
of the Sheriff’s Office Defendants and dismissed all claims against them. He further denied
Bowman’s Motion for Summary Judgment, finding that there was a genuine issue of material
fact whether she committed the tort of defamation of Louisiana law. He took the instant motion
under advisement.
On April 2, 2019, the matter was reassigned to the undersigned. The instant motion is
ripe for review.
II.

LAW AND ANALYSIS
A.

Standard of Review

Summary judgment “shall [be] grant[ed] . . . if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). A fact is “‘material’ if proof of its existence or nonexistence
would affect the outcome of the lawsuit under applicable law in the case.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “‘genuine’ if the
evidence is such that a reasonable fact finder could render a verdict for the nonmoving party.”
Id.
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If the moving party can meet the initial burden, the burden then shifts to the nonmoving
party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache
Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than “some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). In evaluating the evidence tendered by the parties, the Court
must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its
favor. Anderson, 477 U.S. at 255.
B.

Application of Policy Provisions to the Allegations of the Complaint
1. Coverage

The interpretation of an insurance contract is usually a legal question that can be resolved
by means of a motion for summary judgment. Bernard v. Ellis, 11–2377 (La. 07/02/12), 111
So.3d 995; Cutsinger v. Redfern, 08–2607 (La.05/22/09), 12 So.3d 945. However, summary
judgment will not issue “unless there is no reasonable interpretation of the policy, when applied
to the undisputed material facts shown by the evidence supporting the motion, under which
coverage could be afforded.” Schelmety v. Yamaha Motor Corp., 50,586 (La. App. 2d Cir.
2016), 193 So.3d 194, 197-98 (citing USA Elliott v. Continental Casualty Co., 06–1505 (La.
02/22/07), 949 So.2d 1247; Reynolds v. Select Properties, Ltd., 93–1480 (La. 04/11/94), 634
So.2d 1180).
An insurance policy is a contract between the parties and is subject to the general rules of
contract interpretation under the Louisiana Civil Code. See Succession of Fannaly v. Lafayette
Ins. Co., 2001-1144, p. 2 (La. 1/15/02); 805 So. 2d 1134, 1135. Words in an insurance contract
must be given their general meaning, and courts must enforce the clear and unambiguous
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language of the policy. See LA. CIV. CODE ARTS. 2046 & 2047. Any ambiguities must be
construed in favor of the insured. See, e.g., Exxon Corporation v. St. Paul Fire and Marine
Insurance Company, 129 F.3d 781, 788 (5th Cir. 1997).
However, insurance companies have the right to limit coverage, as long as the limitations
do not conflict with statutory provisions or public policy. See Ducote v. Koch Pipeline Co.,
L.P., 98-0942 (La.1/20/99), 730 So.2d 432; Reynolds v. Select Properties, Ltd., 93-1480 (La.
4/11/94), 634 So.2d 1180, 1183. While the insured bears the burden of proving that the claim in
questions falls within the policy coverage, see Doerr v. Mobile Oil Corp., 774 So.2d 199, 124
(La. 2000), the insurer bears the burden of proving that the policy limits or exclusions apply. See
Tunstall v. Stierwald, 809 So.2d 916, 921 (La. 2002).
In this case, the Policy provides:
General
Definitions Used In This Policy
1.

"You" or "your” - means a person named on the Policy Declarations as the insured and
that person's resident spouse.

2.

"Allstate,” “we[,]” “us,” or “our” - means the company named on the Policy
Declarations.

3.

“Insured person(s)” means you and, if a resident of your household:
a) any relative; and
b) any dependent person in your care.

4.

“Bodily injury” - means physical harm to the body, including sickness or disease, and
resulting death, except that bodily injury does not include:
a) any venereal disease;
b) Herpes;
c) Acquired Immune Deficiency Syndrome (AIDS);
d) AIDS Related Complex (ARC);
e) Human Immunodeficiency Virus (HIV);
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or any resulting symptoms, effect, condition, disease or illness related to (a)through (e)
listed above.
...
9.
“Occurrence” - means an accident, including continuous or repeated exposure to
substantially the same general harmful conditions, during the policy period, resulting in bodily
injury or property damage.
...
Section II-Family Liability And Guest Medical Protection
Coverage X
Family Liability Protection
Losses We Cover Under Coverage X:
Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which
an insured person becomes legally obligated to pay because of bodily injury or property
damage arising from an occurrence to which this policy applies, and is covered under this part
of the policy.
We may investigate or settle any claim or suit for covered damages against an insured person,
regardless of the amount of damages sought. If an insured person is sued for covered damages,
we will provide a defense with counsel of our choice, even if the allegations are groundless,
false or fraudulent. We are not obligated to pay any claim or judgment after we have exhausted
our limit of liability by the payment of judgments and settlements.
Losses We Do Not Cover Under Coverage X:
1. We do not cover any bodily injury or property damage intended by, or which may be
reasonably expected to result from the intentional or criminal acts or omissions of, the
insured person. This exclusion applies even if:
a) such insured person lacks the mental capacity to govern his or her own conduct;
b) such bodily injury or property damage is of a different kind or degree than intended or
reasonable expected; or
c) such bodily injury or property damage is sustained by a different person than intended or
reasonably expected.
This exclusion applies regardless of whether such insured person is actually charged with, or
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convicted of, a crime.
[Doc. No. 59-5, Policy, Exh. 3].
Allstate contends that the alleged defamatory statements made or caused by Bowman do
not result from an “occurrence,” as defined by the policy. Allstate contends further that Loston
does not seek damages arising out of a physical injury to some person. It points out that
Loston’s Complaint does not contain allegations that there was an accident resulting in “bodily
injury” or actual physical injury. Finally, Allstate contends that a claim of defamation is
excluded from coverage under the Policy because defamation is an “intentional act.”
Bowman relies on the Louisiana Fourth Circuit Court of Appeals case of Williamson v
Historic Hurstville Ass’n, 556 So.2d 103 (La. App. 4 Cri. 1990), to support her argument that the
Policy does not unambiguously exclude coverage and that the allegations against her amount to
bodily injury and/or property damage. Additionally, Bowman argues that, under the more recent
Louisiana Supreme Court case of Costello v. Hardy, 03-1146 (La. 01/21/04), 864 So.2d 129,
Loston is not required to prove that she acted intentionally with regard to the defamation claim,
but that she had fault of negligence or greater, and, therefore, the intentional act exclusion does
not apply.
Having reviewed the Complaint and the Policy and applied the law, the Court finds that
Loston’s sole claim against Bowman of defamation is not an “occurrence” as the term is defined
in the Policy, and, thus, the Policy provides no coverage. As set forth above, the Policy defines
occurrence as an “accident . . . resulting in bodily injury or property damage.” [Doc. No. 59-5,
Policy, Exh. 3]. Even assuming that Bowman’s alleged defamation of Loston could constitute an
accident, Loston has not alleged facts to show that the accident resulted in bodily injury. “Bodily

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injury” is actually defined under the Policy as “physical harm to the body,” but the allegations in
the Complaint against Bowman are limited to mental and psychological anguish. The applicable
Policy unambiguously excluded claims for emotional or psychological injury when
unaccompanied by “physical harm.” Therefore, Bowman does not have coverage on this basis.
Although Allstate did not address this provision, Bowman contends that she is also
covered under the Policy because Loston’s claims for economic losses constitute property
damages. This argument is not supported by the Complaint either. First, the Policy itself defines
“Property Damage” as “physical injury to or destruction of tangible property, including the loss
of its use resulting from such physical injury or destruction.” [Doc. No. 59-5, Policy, Exh. 3]. It
would appear to the Court that Loston’s claims for lost wages and economic losses in the form of
attorneys’ fees do not fall within the plain and unambiguous language of the definition.
Nevertheless, even if these losses could constitute property damage, Loston sought recovery in
the form of lost wages “during and after the period of detention” and attorneys’ fees under the
federal civil rights statutes. [Doc. No. 1, ¶¶ 8, 39]. A careful review of the Complaint makes
clear that Bowman is accused of defaming Loston after he was arrested. [Doc. No. 1, ¶¶ 28-29
(“Plaintiff was subsequently arrested at the St. Mary Parish Sheriff’s Office and charged with
theft. . .Subsequently, Richelle Bowman posted a photograph of Plaintiff on Facebook and
stated that he was the ‘thug’ who had stolen her son’s ATV 4-wheeler.”). To the extent that
Loston claims lost wages as a result of his detention, there are no allegations to support that
claim for damages against Bowman. Likewise, it is axiomatic under Louisiana law that
attorneys’ fees are only recoverable by statute or contract. Loston cites only the federal civil
rights statutes to support his clam for attorneys’ fees, and he has asserted no civil rights claims

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against Bowman. Thus, there is no property damages claim against Bowman based on the lost
wages and attorneys’ fees.
Finally, to the extent that Bowman relies on the Louisiana Fourth Circuit Court of
Appeals Williamson case, her reliance is misplaced. That case is factually distinguishable in at
least two regards. First, in Williamson, the policy defined “bodily injury” as meaning “‘bodily
injury, sickness or disease . . .” 556 So.3d at 105. The current and applicable Policy herein
requires specifically that there be “physical harm to the body, including sickness or disease.”
[Doc. No. 59-5, Policy, Exh. 3 (emphasis added)]. Thus, the Williamson decision offers no
insight as to how Louisiana courts interpret the precise language before this Court.
With regard to property damage, the Williamson case is factually distinguishable as well.
In that case, the plaintiff specifically alleged that the defendant’s defamation had caused him loss
of business revenue, an allegation not present in this case.
The Williamson court, relying on a 1978 Louisiana Third Circuit Court of Appeals case,
states that “‘a person’s reputation is his property” and that, thus, loss of reputation could
constitute property damage under the Allstate Policy language. Id. at 107 (quoting Lees v. Smith,
363 So.2d 974, 980 (La. App. 3d Cir. 1978)). To this extent, Loston has certainly asserted a
claim for loss of reputation against Bowman. If the Court were to agree with Williamson, then,
again assuming that Bowman’s alleged defamation was an “accident,” Loston’s claim for loss of
reputation damages would be covered by the property damages language of the Policy.
The Court does not agree. Instead, the Court finds more persuasive decisions of other
courts, including the United States Fifth Circuit Court of Appeals, which have rejected
Williamson’s reasoning. The Fifth Circuit explained its rejection in DeLoach v. HGI
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Catastrophe Servs., L.L.C., 460 F. App’x 314 (5th Cir. 2012), when considering a policy that
defined property damage as “Physical injury to tangible property, including all resulting loss of
use of that property . . .; or . . .Loss of use of tangible property that is not physically injured.”
Id. at 316. The DeLoach Court explained.
Hammerman sought summary judgment against CCC on the contention that
reputational damage constituted “property damage” within the meaning of the
policy, and therefore triggered CCC’s duty to defend. . . . Hammerman based its
argument on two decisions of the Louisiana Court of Appeal holding that loss of
reputation qualified as property damage for purposes insurance coverage: Lees v.
Smith, 363 So.2d 974 (La. Ct. App. 3 Cir. 1978), and Williamson v. Historic
Hurstville Ass'n, 556 So.2d 103 (La. Ct. App. 4 Cir. 1990).
As the district court thoroughly explained, previous decisions of this court have
rejected the reasoning of Lees and Williamson. See, e.g., Selective Ins. Co. of
Southeast v. J.B. Mouton & Sons, Inc., 954 F.2d 1075, 1079 (5th Cir. 1992) (“
‘[T]angible’ property corresponds to the Louisiana civilian concept of ‘corporeal’
property.”) (citing City of New Orleans v. Baumer Foods, Inc., 532 So.2d 1381,
1383 (La. 1988)); Lamar Adver. Co. v. Cont'l Cas. Co., 396 F.3d 654, 663 (5th
Cir. 2005). In Lamar Advertising we interpreted a CCC policy virtually identical
to the one at issue and stated:
While it is true that in Williamson, the Louisiana Fourth Circuit Court of Appeal
held that loss of profits constitutes injury to “tangible property,” we find that the
holding in Williamson does not compel us to depart from our more recent
treatment of this issue in Selective Insurance. In Williamson, the complaint in the
underlying action alleged that the defendant's defamatory remarks about the
plaintiff and his business venture caused reputational injury, i.e., intangible
property, and thereby, caused him consequential loss of profits. The Louisiana
Fourth Circuit held that injury to reputation and loss of profitability constitute
damages to “tangible property” within the meaning of a homeowner's policy that
defined property damage as “physical injury to or destruction of tangible property
including loss of its use.” As Continental accurately points out, however, the court
in Williamson based its interpretation of the policy on a Webster's Dictionary
definition of the term tangible. The Williamson court considered neither the
Louisiana Supreme Court's declaration that tangible property is corporeal property
nor any provision of the Louisiana Civil Code in reaching this conclusion.
Moreover, the Williamson court’s broad interpretation of the term tangible would
render meaningless the provision under Continental's policy agreeing to pay only
those damages caused by physical damage to tangible property. Such an
interpretation would make all damages recoverable under the policy. By contrast,
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this court’s interpretation of the terms tangible property as pronounced in
Selective Insurance, is far more consonant with the language under Continental's
policy and is consistent with Louisiana civil law methodology. Accordingly, we
hold that loss of profits that do not flow from injury to tangible property is not a
loss covered by this policy’s property damage provision.
396 F.3d at 665 (internal citations and footnotes omitted). Lamar Advertising is
dispositive of this appeal. “[I]n the absence of a subsequent state court decision or
statutory amendment which makes this Court's [prior] decision clearly wrong, we
are bound by a prior panel's interpretation of state law.” Am. Int'l Specialty Lines
Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 271 n. 4 (5th Cir. 2003) (second
alteration in original) (internal citations and quotation marks omitted). One's
reputation is not tangible property, and the purely economic losses resulting from
damage thereto are not “property damage” within the meaning of the policy.
Id. at 316-17.1
For all of these reasons, the Court finds that there was no occurrence under the Policy,
and, thus, no coverage.2
2. Duty to Defend
The Court has found that Allstate’s policy does not provide coverage for Loston’s
defamation claim against Bowman, but “[u]nder Louisiana law, an insurer’s duty to defend suits
brought against an insured is broader than its duty to indemnify the insured.” Lamar Adver. Co.
v. Cont'l Cas. Co., 396 F.3d 654, 660 (5th Cir. 2005) (internal citations omitted). “Whether an
insurer has a duty to defend is determined solely by ‘comparing the allegations in the complaint
against the insured with the terms of the policy’ at issue -- the so-called ‘eight corners’ rule.” Id.
at 660 (citing references omitted). “If ‘there are any facts in the complaint which, if taken as
true, support a claim for which coverage is not unambiguously excluded,’ the insurer must

1
This decision underscores the Court’s belief that none of Loston’s claims of economic loss, even if
asserted against Bowman, constitute property damage.
2

The Court need not reach the parties’ remaining arguments on the exclusion for intentional conduct.

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defend the insured.” Id. “Accordingly, ‘assuming all the allegations of the petition are true, the
insurer must defend, regardless of the outcome of the suit, if there would be both (1) coverage
under the policy and (2) liability to the plaintiff.’” Id.
In this case, however, the only allegations against Bowman arise from her alleged
defamation of Loston. The Court has found that these allegations, even if true, would not render
Allstate liable for a judgment against Bowman. Accordingly, the Court finds that Allstate has no
duty to defend Bowman.
III.

CONCLUSION
For the foregoing reasons, Allstate’s Motion for Summary Judgment is GRANTED.

The Court issues a declaratory judgment that Allstate does not provide insurance coverage for
the claims asserted by Plaintiff against Defendant Richelle Bowman and that it does not have a
duty or contractual obligation to provide legal representation or a defense to the claims asserted
by Plaintiff.
MONROE, LOUISIANA, this 5th day of April, 2019.

TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE

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