I respectfully disagree with the majority opinion as I conclude that genuine issues of material fact remain as to whether Lafayette City-Parish Consolidated Government was an “additional insured” under The Burlington Insurance Company policy.
Most notably, I find that questions remain as to whether Esthay Enterprises, Inc. completed its cycle of work at the jobsite. I find no jurisprudential authority that the Burlington policys “ongoing operations” endorsement equates to active operations on the jobsite. Rather, the Burlington policy requires only that the operations are ongoing until “complete.”
Here, the pertinent “Specification & Contract Documents” controlling Esthays work for LCG called for Esthay not only to “mow” but to “trim” as well. Section IV, titled “Specifications – Maintenance Mowing,” provides, in part:
Mowing and Trimming
․
Hand trimming is required around all fixed objects such as sign posts, delineators, culvert ends, trees, shrubs, plants, guard rails, culvert head walls, bridge abutments, bridge or overpass columns and piling, and fences where the Contractor is required to mow on both sides due to the presence of service roads or other facilities, etc., as directed by the Project Coordinator. Trimming shall follow the mowing operation by no more than 24 hours.
(Emphasis in the original.) The specifications further detailed that because certain areas within the defined “[m]owable areas ․ may not be accessible to standard mowing equipment and may require hand trimming or specialized mowing equipment such as boom or side mount mowers.”
Again, the Burlington policy affords coverage to an additional insured until Esthays “operations for that additional insured are completed.” There is no suggestion in that policy language that the operations are completed merely because the insured performs only part of its contracted task and leaves the work site. In this case, the question remains whether Esthay timely returned to the jobsite to complete the contracted task by hand trimming the site. It is alleged that the weeds Esthay failed to trim caused visual obstructions to both the minor child as he emerged from the overgrown grass on the median and to the oncoming driver, contributing to the minor child being struck by the oncoming vehicle and causing his injuries. Whether Esthay timely did so or even intended to do so before the next mowing cycle commenced is, in my opinion, irrelevant to the policy language. Simply, it is alleged that Esthays task was not “completed” and, therefore, a question remains as to whether the work cycle was ongoing.
This particular scenario differs from the policy language and factual scenario presented in Cormier v. Lafayette-City Parish Consolidated Government, 03-975 (La.App. 3 Cir. 2/11/04), 866 So.2d 395 as referenced by the majority. While Cormier stands for the proposition that an insurer will not be held to provide coverage for an indeterminable period of time to third parties who are not part of the insurance contract, the policy in Cormier, like here, excluded coverage to a purported additional insured after the contracted work was put to its “intended use.” The additional insured in Cormier, however, had in fact accepted the completed work. Thus, the trial court in Cormier found that the work had been put to its intended use and that there was no coverage. The ruling was maintained on appeal. Id.
Conversely in this case, LCG challenges whether Esthays “operations” were “completed” due to their failure to return to the jobsite for hand trimming. Moreover, a recurring mowing cycle differs from the type of single, discrete road project at issue in Cormier.
Accordingly, I find that a reversal is appropriate and respectfully dissent.
CONERY, Judge, dissenting.