Policy Exclusion Cannot Be Raised in an Exception of No Right of Action

4
May

Policy Exclusion Cannot Be Raised in an Exception of No Right of Action

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An insurer defendant cannot assert an exclusion of its insurance policy in an exception of no right of action, according to a recent decision by the Louisiana Third Circuit Court of Appeal.

The court explained that an exclusion in an insurance policy generally is an affirmative defense, which the court determined cannot be raised in an exception of no right of action, which is a pre-Answer motion to dismiss.  According to the court, an affirmative defense goes to the merits of a claim, and, therefore, should not be asserted in an exception of no right of action.  As the court noted, the purpose of the exception of no right of action “is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.”

In this case, a bail bondsman went to a father’s mobile home to assist the father in apprehending his son.  A fight ensued, and the bail bondsman sustained injury when he fell out of the back door of the home. The bail bondsman sued for his injuries.  The father’s homeowner’s insurer filed the exception of no right of action asserting the intentional act exclusion of the policy.  The trial court granted the exception, but the appellate court reversed, as explained above.

This case serves as an important reminder of the proper rules for raising defenses under an insurance policy.

Leone v. Ware, 17-638 (La. App. 3 Cir. 05/02/18); 2018 La. App. LEXIS 841.

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