Jourdain v. Millet

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

___________________________

No. 97-31174
___________________________

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.
___________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-416-J)
___________________________________________________

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this opinion should not be published and is not precedent except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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