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Widder v. La. Citizens Prop. Ins. Corp.

Court of Appeal of Louisiana, Fourth Circuit

August 10, 2011, Decided

NO. 2011-CA-0196

Opinion

 [*295]  [Pg 1] This appeal is taken from the granting of summary judgment in favor of the defendant Louisiana Citizens Property Insurance Corporation (LCPIC) and denying coverage for Marcia Widder's claims.

Ms. Widder owns property insured by a LCPIC homeowner's policy. In 2009, she made an insurance claim with LCPIC for damages caused by inorganic lead. U.S. Forensics, LLC, on behalf of LCPIC, conducted an inspection of the residence and found excessive levels of lead in the kitchen, living room, master bedroom, and attic. The report surmised that due to the level of inorganic lead in the attic, the dust had migrated into the walls. It was also determined that all of the contents of the home  [**2] were contaminated. Ms. Widder and her children had to move from the home due to the dangerous level of lead contamination. Despite this finding, LCPIC denied her claim for damages.

After the denial, Ms. Widder filed suit alleging that by denying coverage LCPIC was in breach of contract and acting in bad faith for violating terms of the policy. LCPIC filed a motion for summary judgment stating that there was no direct physical loss or triggering event that created coverage and further, even if there were, the defective material exclusion, latent defect exclusion, and pollution [Pg 2] exclusion all preclude coverage. At the hearing for the motion for summary judgment, the trial court found that the residence did not sustain a direct physical loss as is required to trigger coverage under the policy and further found that the exclusion of faulty materials applies to defective materials used in repair, construction, renovation, remodeling of part or all of any property whether on and off the residence premises. Based on those grounds, the trial court granted the summary judgment. This appeal followed.

Ms. Widder raises two assignments of error on appeal; 1) the district court erred by finding  [**3] that the lead-based paint which originated in part from outside the property did not qualify as "direct physical loss" to trigger coverage; and 2) the district court erred by finding that the lead-based paint, which originated in part from outside the property was excluded from coverage under the homeowner's policy's defective material exclusion.

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82 So. 3d 294 *; 2011 La. App. LEXIS 969 **; 2011-0196 (La.App. 4 Cir. 08/10/11);; 2011 WL 3521611

MARCIA WIDDER VERSUS LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION D/B/A LOUISIANA CITIZENS FAIR PLAN

Subsequent History: Released for Publication September 21, 2011.

Rehearing denied by Widder v. La. Citizens Prop. Ins. Corp., 82 So. 3d 294, 2011 La. App. LEXIS 1132 (La.App. 4 Cir., Sept. 21, 2011)

Writ denied by Widder v. La. Citizens Prop. Ins. Corp., 76 So. 3d 1179, 2011 La. LEXIS 2996 (La., Dec. 2, 2011)

Prior History:  [**1] APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2010-2684, DIVISION "H-12". Honorable Michael G. Bagneris, Judge.

Disposition: REVERSED AND REMANDED.

CORE TERMS

coverage, summary judgment, physical loss, insured, defective materials, trial court, inorganic, insurance policy, drywall

Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Legal Entitlement, Materiality of Facts, Appropriateness, General Overview, Insurance Law, Claim, Contract & Practice Issues, Policy Interpretation, Contracts Law, Contract Interpretation, Ambiguous Terms, Construction Against Insurers, Property Insurance, Coverage, Property Damage, All Risks, Burdens of Proof, Movant Persuasion & Proof, Exclusions