UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 97-31174
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SARITA HOLMES JOURDAIN; MICHAEL JOURDAIN,
Plaintiffs,
VERSUS
RIVERSIDE MOBILE HOME PARK, INC.; DAVID W. MILLET, SR.,
Defendants - Cross Plaintiffs - Appellants,
VERSUS
AMERICAN GLOBAL INSURANCE,
Defendant - Cross Defendant - Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-416-J)
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November 13, 1998
Before REAVLEY, DAVIS and DUHÉ, Circuit Judges.
PER CURIAM:*
Defendants Riverside Mobile Home Park, Inc. and David W.
Millet, Sr. appeal the district court’s grant of summary judgment
in favor of American Global Insurance. They contend that the
district court erred in concluding that American Global Insurance
had no duty to defend under its insurance policy issued to
appellants. They also appeal the district court’s denial of their
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
motion for summary judgment. We affirm.
I.
Plaintiffs Sarita Jourdain and Michael Jourdain purchased a
trailer home in January of 1997. The trailer was located in
Riverside Mobile Home Park in Reserve, Louisiana. The park was
owned by Riverside Mobile Home Park, Inc. (“Riverside”) and was
operated by David Millet, Sr., the owner of Riverside.
After purchasing the trailer, the Jourdains, an African
American couple, allege that Millet refused to lease to them the
lot on which their trailer was located because of their race. They
further allege that Millet shut off their water supply by locking
the water line control and that he refused to return their phone
calls.
Plaintiffs filed suit against Riverside and Millet, alleging
violations of the Civil Rights Act, 42 U.S.C. §§ 1981 and 1982, and
the Fair Housing Act, 42 U.S.C. § 3601, et seq. Plaintiffs also
joined Riverside and Millet’s general liability insurer American
Global Insurance (“AGI”). AGI filed a motion for summary judgment,
asserting that it had no duty to defend or to indemnify Riverside
and Millet because plaintiffs’ allegations of intentional
discrimination were not covered under the policy, which contained
an intentional acts exclusion. Riverside and Millet filed a cross
motion for summary judgment.
Relying upon Vaughner v. Pulito, 804 F.2d 873 (5th Cir. 1986),
the district court held that plaintiffs had alleged causes of
action that could only be predicated upon intentional
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discriminatory acts by Riverside and Millet. Because the insurance
policy issued by AGI had an intentional acts exclusion, the court
concluded that AGI had no duty to defend and granted AGI’s motion
for summary judgment. The district court also denied Riverside and
Millet’s motion for summary judgment. Riverside and Millet
perfected their appeal to this Court.
II.
We review a district court’s grant of summary judgment under
a de novo standard of review. Melton v. Teachers Ins. & Ass’n of
America, 114 F.3d 557, 559 (5th Cir. 1997). Summary judgment is
proper where the pleadings and summary judgment evidence, viewed in
the light most favorable to the nonmovant, present no genuine issue
of material fact and the moving party is entitled to judgment as a
matter of law. Id.; Celotex v. Catrett, 477 U.S. 317, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986); Hibernia Nat’l. Bank v. Carner, 997
F.2d 94 (5th Cir. 1993). Applying these principles, we turn to the
question of whether the district court properly granted AGI’s
motion for summary judgment.
Under Louisiana law, in order to determine whether an insurer
has a duty to defend its insured under the policy, the court must
compare the terms of the insurance policy with the allegations in
the plaintiff’s complaint. Vaughner, 804 F.2d at 876 (citing
Audubon Coin & Stamp Co. v. Alford Safe & Lock Co., 230 So.2d 278,
279 (La. App. 1st Cir. 1969)). Only if the allegations in the
plaintiff’s complaint “unambiguously and absolutely exclude
coverage” is the insurer relieved of the duty to defend the
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insured. Vaughner, 804 F.2d at 877; Michel v. Ryan, 373 So.2d 985,
988 (La. App. 3d Cir. 1979). If the petition alleges facts that,
if proven, would trigger coverage under the policy, the insurer is
obligated to defend. Vaughner, 804 F.2d at 877; West Brothers of
DeRidder v. Morgan Roofing, 376 So.2d 345,348 (La. App. 3d Cir.
1979).
The insurance policy at issue provides that coverage is
excluded for “‘Bodily injury’ or ‘property damage’ expected or
intended from the standpoint of the insured.” Both Riverside and
Millet are “insureds” under the policy.2 Therefore, policy
coverage is activated only if appellants’ liability is based on an
unintentional act. Vaughner, 804 F.2d at 877. We must compare the
language of the policy to the allegations made in plaintiffs’
complaint to determine whether the allegations unambiguously and
absolutely exclude coverage, relieving AGI of its duty to defend.
Plaintiffs assert two causes of action in their complaint.
They allege violations of the Civil Rights Act, 42 U.S.C. §§ 1981
and 1982, and the Fair Housing Act, 42 U.S.C. § 3601. Under the
Civil Rights Act, it is necessary to show intentional racial
2
The policy provides:
1. If you are designated in the Declarations as...
c. An organization other than a partnership or
joint venture, you are an insured. Your “executive
officers” and directors are insureds, but only with
respect to their duties as your officers or
directors. Your stockholders are also insureds, but
only with respect to their liability as
stockholders.
2. Each of the following is also an insured:
a. Your “employees,” other than your “executive
officers,” but only for acts within the scope of
their employment by you or while performing duties
related to the conduct of your business.
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discrimination. Hanson v. Veterans Admin., 800 F.2d 1381 (5th Cir.
1986)(citing Firefighters Local Union No. 1784 v. Stotts, 467 U.S.
561, 567, n. 16, 104 S.Ct. 2576, 2590 n. 16, 81 L.Ed.2d 483 (1984);
Save Our Cemetaries, Inc. v. Archdiocese of New Orleans, Inc., 568
F.2d 1074, 1078 (5th Cir. 1978), cert. denied, 439 U.S. 836, 99
S.Ct. 120, 58 L.Ed.2d 133 (1978)). However, under the Fair Housing
Act, a violation may be established not only by discriminatory
intent, but also by a showing of “significant discriminatory
effect.” Hanson, 800 F.2d at 1386 (citing Woods-Drake v. Lundy,
667 F.2d 1198, 1202 (5th Cir. 1982); United States v. Mitchell, 580
F.2d 789, 791-92 (5th Cir. 1978)). Thus, plaintiffs may state a
cause of action under the Fair Housing Act either by alleging
instances of intentional discrimination or instances of
unintentional actions that have a significant discriminatory
effect. If plaintiffs have alleged unintentional actions by
Riverside and Millet, then AGI would have a duty to defend because
these unintentional actions, unlike intentional actions, would fall
within the coverage provided by the policy.
However, a careful reading of plaintiffs’ complaint reveals
that plaintiffs have alleged only intentional acts of
discrimination. Plaintiffs allege that Millet refused to lease to
them the lot on which their trailer was located because of their
race, that he shut off their water supply, and that he refused to
return their phone calls. Several times in the complaint,
plaintiffs use the language “intentionally and maliciously” in
describing Millet’s actions. These allegations can only establish
intentional racial discrimination by Riverside and Millet.
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Appellants argue that plaintiffs have alleged unintentional
acts that have a discriminatory effect. Specifically, they point
to the sentence in plaintiffs’ complaint that “Defendant has
continuously followed a pattern and practice of discriminating
against African Americans...when such persons inquire about renting
trailer space.” However, we read this phrase in the petition as
complaining that appellants intentionally discriminated against
African Americans repeatedly. It is not being used to show that
appellants participated in an unintentional pattern or practice
that had a discriminatory effect on African Americans.
III.
Because the allegations in plaintiffs’ complaint allege only
intentional acts of discrimination, the district court correctly
concluded that AGI had no potential coverage under the policy.
Consequently, AGI had no duty to defend. The judgment of the
district court is therefore affirmed.
Affirmed.
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