Marcella Hurst v. Louisiana Farm Bureau Insurance Company and Michael Rodriguez

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Court of Appeal of Louisiana, First Circuit.

Marcella Hurst v. Louisiana Farm Bureau Insurance Company and Michael Rodriguez

NUMBER 2016 CA 0263

    Decided: January 05, 2017

BEFORE:  WELCH, CRAIN, AND HOLDRIDGE, JJ. Darrel J. Papillion, Edward J. Walters, Jr., Renee C. Crasto, Baton Rouge, Louisiana, Attorneys for Appellant Plaintiff–Marcella Hurst Kevin P. Landreneau, Johanna R. Landreneau, Baton Rouge, Louisiana, Attorneys for Appellee Defendant/Third Party Plaintiff–Michael Rodriguez R. Heath Savant, Baton Rouge, Louisiana, Attorney for Appellees Defendants/Third Party Defendants–Louisiana Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Mutual Insurance Company

The appellant, Marcella Hurst, appeals a trial court judgment granting summary judgment in favor of the appellees, Louisiana Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Mutual Insurance Company, on the issue of coverage. For reasons that follow, we affirm the judgment of the trial court.

FACTS & PROCEDURAL HISTORY

The following facts are undisputed. Michael Rodriguez is the proprietor of an agricultural consulting firm named Rodriguez Crop Consulting, LLC (“RCC”). On August 4, 2012, Mr. Rodriguez and a RCC employee were traveling to the Lafayette area to visit and inspect various farms on behalf of RCC's consulting clients. Mr. Rodriguez was operating a 2006 Toyota Tundra owned by RCC and insured under an automobile policy issued to RCC by Louisiana Farm Bureau Mutual Insurance Company. The underlying August 4, 2012 accident that forms the basis of this suit occurred when Mr. Rodriguez stopped for gas at the LA Express located at 222 Highway 415 in West Baton Rouge Parish. While driving in the parking lot of the LA Express, Mr. Rodriguez struck the plaintiff, Marcella Hurst, who was walking across the parking lot after she completed checking the gasoline pumps as part of her job duties. There is no dispute that Mr. Rodriguez was a permissive user of the 2006 Toyota Tundra.

As set forth in further detail below, Mr. Rodriguez had multiple personal policies of insurance issued through Louisiana Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Mutual Insurance Company for his personal vehicles and home. His three personal vehicles were insured under three automobile policies issued by Louisiana Farm Bureau Casualty Insurance Company. The provisions of the three automobile policies are identical. For periods relevant herein, Louisiana Farm Bureau Mutual Insurance Company also issued a personal umbrella policy to Mr. Rodriguez (referred to herein as the “umbrella policy”). The umbrella policy provides excess coverage to certain underlying policies. Schedule A of the umbrella policy contains a “Schedule of Underlying Insurance,” which in addition to Mr. Rodriguez's homeowner's policy, also identifies the three personal automobile policies and vehicles eligible for excess coverage thereunder:  AV23003—2007 Saturn Vue;  AW86731—Hyundai Santa Fe;  and A476076—2002 Toyota Sequoia. The Hyundai and Saturn were cars used by Mr. Rodriguez's daughters, and the 2002 Toyota Sequoia was principally used by his wife;  however, Mr. Rodriguez is listed as a “driver” on all three policies.

In February of 2013, the plaintiff initiated this suit against Mr. Rodriguez, RCC, Louisiana Farm Bureau Casualty Insurance Company, and Louisiana Farm Bureau Mutual Insurance Company, as the insurers of both Mr. Rodriguez and RCC. Additionally, Mr. Rodriguez filed his own cross-claim and third-party demand. Mr. Rodriguez's cross-claim was filed against “Louisiana Farm Bureau Insurance Company,” which was answered by Louisiana Farm Bureau Mutual Insurance Company and Louisiana Farm Bureau Casualty Insurance Company (collectively referred to herein as “Farm Bureau”). Mr. Rodriguez asserted that his claim for excess coverage under the umbrella policy for liability in the instant matter was wrongfully denied by Farm Bureau.

Mr. Rodriguez also filed a third-party demand against his Farm Bureau insurance agents, Blane Brignac and Kerney Trahan. Mr. Rodriguez alleged that he approached the third-party defendant insurance agents seeking an umbrella policy that would provide full personal protection and coverage for liability claims against him regardless of whether the claims arose while he was in a personal or RCC vehicle, or whether he was engaged in personal or business pursuits. Mr. Rodriguez contended that the insurance agents made representations to him that Farm Bureau would provide such coverage to him and did provide such coverage to him under the above-referenced umbrella policy. Mr. Rodriguez asserted that if the umbrella policy is found to not provide coverage to him under the facts herein, then Mr. Brignac and Mr. Trahan are liable unto him for their misrepresentations and failure to properly procure the appropriate and/or requested umbrella policy.

 Relevant Provisions Under Umbrella and Automobile Policies:

As noted above, Mr. Rodriguez is seeking coverage under his personal automobile and related umbrella policies for losses associated with the August 4, 2012 accident. As noted above, Mr. Rodriguez's personal automobile policies are listed as underlying policies under the umbrella policy. Endorsement #13 of the umbrella policy limits automobile related coverage under the umbrella policy to only those claims for which there is coverage available under the underlying policies listed in Schedule A of the declaration sheet of the umbrella policy, to wit:

AUTOMOBILE LIABILITY FOLLOWING FORM

EXCEPT TO THE EXTENT THAT COVERAGE IS AVAILABLE TO THE INSURED IN THE UNDERLYING POLICIES AS STATED IN THE SCHEDULE OF UNDERLYING INSURANCE, THIS POLICY DOES NOT APPLY TO THE OWNERSHIP, MAINTENANCE, OPERATION, USE, LOADING OR UNLOADING OF ANY AUTOMOBILE WHILE AWAY FROM PREMISES OWNED BY, RENTED TO, OR CONTROLLED BY THE INSURED.1

All three underlying personal automobile policies contain the following provisions addressing coverage under the policy for liability for bodily injury and property damage:

THE COMPANY INDICATED ON THE DECLARATIONS AGREES with the insured, named on the Declarations made a part hereof, in consideration of the payment of the premiums and in reliance upon all statements of the insured and subject to all the provisions of this policy:

INSURING AGREEMENTS

PART I. LIABILITY

Coverages A, Bodily Injury and B, Property Damage

1. To pay on behalf of the insured all sums, except punitive and/or exemplary damages, which the insured shall become legally obligated to pay as damages:

Coverage A because of bodily injury sustained by any person, and

Coverage B because of an injury to or destruction of property,

caused by accident and arising out of the ownership, maintenance or use of the automobile described on the declarations, including loading and unloading thereof.

Relevant to the instant matter is the “Use of Other Automobiles” provision found in the underlying personal automobile policies as it provides coverage in certain situations where the insured is a permissive driver of an automobile not listed in the policy.

USE OF OTHER AUTOMOBILES

If the named insured is an individual or husband and wife, and if during the policy period such named insured or the spouse of such individual, owns a private passenger automobile or farm truck covered by this policy, such insurance as is afforded by this policy under Coverages A and B, Division 2 of Coverage C, D and E with respect to said automobile applies with respect to the use of any other automobile with permission of the owner, subject to the following provisions:

* * *

(d) This insuring agreement does not apply:

(1) to any automobile owned by or furnished for regular use to either the named insured or a member of the same household. [Emphasis added.]

 Motion for Summary Judgment—Action of the Trial Court

Farm Bureau filed motions for summary judgment seeking dismissal of the plaintiff's petition and Mr. Rodriguez's cross-claim seeking coverage under the personal automobile policies and the umbrella policy. Farm Bureau does not appear to contest coverage under the automobile policy issued to RCC to provide coverage for the 2006 Toyota Tundra. The legal and factual assertions in each motion are similar. Farm Bureau's motions argued that the 2006 Toyota Tundra is excluded from coverage pursuant to the regular use exclusions contained in the underlying personal automobile policies;  therefore, there is no coverage under the umbrella policy. Specifically, Farm Bureau argued:  (1) the 2006 Toyota Tundra is not described on the declaration sheet of any of the personal automobile policies or the umbrella policy;  and (2) the 2006 Toyota Tundra is excluded from coverage under the personal automobile policies under the regular use exclusion contained in the policies.

The plaintiff and Mr. Rodriguez opposed Farm Bureau's motions for summary judgment arguing that the 2006 Toyota Tundra is not excluded from coverage under the underlying personal automobile policies and that the regular use exclusion contained therein is ambiguous. Alternatively, the plaintiff and Mr. Rodriguez countered that disputed issues of fact existed as to whether the Farm Bureau insurance agents mislead Mr. Rodriguez to believe that the umbrella policy provided coverage regardless of whether his alleged negligence arose while engaged in a business or personal pursuit. The plaintiff added that Farm Bureau's motion should be denied as premature to allow for additional discovery, particularly to ascertain additional facts as to what Mr. Rodriguez had been told by the Farm Bureau insurance agents.

The motions for summary judgment were heard in open court on October 1, 2015. The trial court found that the 2006 Toyota Tundra was owned by RCC, but regularly used by Mr. Rodriguez. The trial court also found that the 2006 Toyota Tundra was not listed on any underlying policy on the declaration sheet of the umbrella policy, and further, the trial court found that under the facts presented liability coverage was excluded under the regular use exclusion contained in Mr. Rodriguez's underlying personal automobile policies. Additionally, the trial court held that because the 2006 Toyota Tundra was not listed on the declaration sheet of the umbrella policy and was excluded from coverage under the regular use exclusion of the underlying personal automobile policies, there was no coverage under the umbrella policy in connection with the August 4, 2012 accident. In a judgment signed November 12, 2015, the trial court dismissed the plaintiff and Mr. Rodriguez's claims against Farm Bureau under the underlying personal automobile policies and umbrella policy with prejudice. The plaintiff appealed.

LAW AND DISCUSSION

An appellate court reviews a district court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93–2512 (La. 7/5/94), 639 So.2d 730, 750. Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).2 A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages.3 Simmons v. Weiymann, 2005–1128 (La. App. 1st Cir. 8/23/06), 943 So.2d 423, 425. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some exclusion applies to preclude coverage. Lewis v. Jabbar, 2008–1051 (La. App. 1st Cir. 1/12/09), 5 So.3d 250, 254–255.

An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Reynolds v. Select Properties, Ltd., 93–1480 (La. 4/11/94), 634 So.2d 1180, 1183. Words and phrases used in a policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. See La. C.C. art. 2047. Where the language in the policy is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. See La. C.C. art. 2046.

The purpose of liability insurance is to afford the insured protection for damage claims;  therefore, policies should be construed to effect, and not to deny, coverage. Thus, a provision which seeks to narrow the insurer's obligation is strictly construed against the insurer, and if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. Reynolds, 634 So.2d at 1183. However, subject to the above rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Id.

If the policy wording at issue is clear and unambiguously expresses the parties' intent, the insurance contract must be enforced as written. Succession of Fannaly v. Lafayette Insurance Co., 2001–1355 (La. 1/15/02), 805 So.2d 1134, 1137–1138. The determination of whether a contract is clear or ambiguous is a question of law. Cadwallader v. Allstate Insurance Co., 2002–1637 (La. 6/27/03), 848 So.2d 577, 580.

The so-called “regular use” exclusion for non-owned automobiles is a typical and common policy provision. Gonzales v. Geisler, 46,501 (La. App. 2nd Cir. 9/21/11), 72 So.3d 992, 996. It relieves the insurance company of the unfair burden of insuring an automobile not listed in the policy which an insured uses regularly but for which the insured pays no premium. Id. The well-settled purpose of the regular use exclusion is to prevent the insurance company from being exposed to a risk for which it is not compensated. See Romano v. Girlinghouse, 385 So.2d 352, 355 (La. App. 1st Cir. 1980).

In their briefs to this court, the plaintiff and Mr. Rodriguez argue that the 2006 Toyota Tundra is covered under the “Use of Other Automobiles” provision contained in the underlying automobile insurance policies;  thus, coverage is triggered under the terms of Endorsement #13 of the umbrella policy.4 The plaintiff and Mr. Rodriguez stress that the “Use of Other Automobiles” provision provides coverage to an insured under the policy in those instances where the insured is a permissive driver of a non-covered automobile. The plaintiff and Mr. Rodriguez contend that Mr. Rodriguez should be afforded covered under the “Use of Other Automobiles” because he was (1) an insured under the 2002 Toyota Sequoia (his wife's automobile) and (2) a permissive driver of the 2006 Toyota Tundra.

However, when discussing the “Use of Other Automobiles” provision, the plaintiff and Mr. Rodriguez conspicuously exclude any mention of or reference to the regular use exclusion contained in (d)(1) of the “Use of Other Automobiles” provision, which expressly provides that the insuring agreement does not apply to an automobile furnished for regular use to either the named insured or a member of the same household.

We find that the 2006 Toyota Tundra driven by Mr. Rodriguez is excluded from coverage under the underlying policy as it falls squarely within the scope of the regular use exclusion. The deposition testimony of Mr. Rodriguez establishes that he was a permissive driver of the 2006 Toyota Tundra, and that he used the 2006 Toyota Tundra as well as another vehicle owned by RCC as his regular vehicles. It is undisputed that at the time of his accident, Mr. Rodriguez was using the 2006 Toyota Tundra to perform services on behalf of RCC clients in the Lafayette area, which was clearly a permissible use of the truck.

The regular use exclusion set forth in (d)(1) taken in its plain, ordinary sense is easily understood by the insured to mean that no coverage exists on automobiles that Mr. Rodriguez or his family may have the right to use regularly. As noted above, such provisions provide coverage for the occasional use of a vehicle not insured under the policy without incurring an additional premium, but exclude coverage for a vehicle that the insured or a family member uses on a regular basis without a corresponding premium charge. We conclude that the regular use exclusion contained in the Farm Bureau personal automotive policies is not ambiguous;  therefore, this court must enforce the contract as written. See also Hawkins v. Fowler, 2011–1495 (La. App. 1st Cir. 5/2/12), 92 So.3d 544, 547 writ denied, 2012–1449 (La. 10/8/12), 98 So.3d 860;  Gonzales, 72 So.3d at 992;  Whitham v. Louisiana Farm Bureau Casualty Insurance Co., 45,199 (La. App. 2nd Cir. 4/14/10), 34 So.3d 1104, 1108;  Seymour v. Estate of Karp, 2005–1382 (La. App. 4th Cir. 7/31/08), 996 So.2d 1, 5;  St. Pierre v. Permanent General Assurance, 2002–0497 (La. App. 3rd Cir. 10/30/02), 829 So.2d 1185, 1189;  Dardar v. Prudential Property & Casualty Insurance Co., 98–1363 (La. App. 1st Cir. 6/25/99), 739 So.2d 330, 334, writ denied, 99–2196 (La. 11/12/99), 750 So.2d 195 (La. 1999).

We find no error in the trial court's finding there was no coverage for the claims asserted by the plaintiff and Mr. Rodriguez under the underlying personal automobile policies issued by Farm Bureau to Mr. Rodriguez. Further, based on the finding that there is no coverage under the underlying automobile policies, the trial court correctly found that there is no related coverage provided herein pursuant to Endorsement #13 of the umbrella policy.

The plaintiff and Mr. Rodriguez additionally contend that application of the regular use exclusion in the underlying policies under the facts in this case violates public policy, as it leads to the absurd result where Mr. Rodriguez's family members are not provided coverage under the “Use of Other Automobiles” provision in relation to the 2006 Toyota Tundra. The plaintiff and Mr. Rodriguez suggest that such a scenario somehow penalizes the entire Rodriguez family because he has his business located at his home.

In the absence of conflict with a statute or public policy, insurers have the same rights as individuals to limit their liability and impose whatever conditions they desire upon their obligations. Sims v. Mulhearn Funeral Home, Inc., 2007–0054 (La. 5/22/07), 956 So.2d 583, 595. We could find no statutory support for the position that compulsory insurance laws require that insurance policies extend coverage to include its insureds' or their permissive drivers' use of non-owned automobiles.5 Moreover, the plaintiff and Mr. Rodriguez do not suggest any. Moreover, we find that excluding coverage under these circumstances comports with the intent of the regular use exclusion to protect an insurance company against double coverage when a premium has been paid on only one vehicle. If the insured has access to a second vehicle furnished for his regular use, the insurance company can rightfully require that a premium be paid for the insured's use or his family's use of the second vehicle. See Romano v. Girlinghouse, 385 So.2d at 355;  see also Peyton v. Bseis, 96–0309 (La. App. 4th Cir. 8/21/96), 680 So.2d 81, 84.6 We find no merit in the assertion that application of the regular use exclusion contained in Farm Bureaus' policies to the facts herein violates public policy.

Finally, we address the plaintiff and Mr. Rodriguez's contention that genuine issues of material fact exist as to what Mr. Rodriguez believed and was led to believe by the third-party defendant insurance agents regarding the amounts of coverage as well as the scope of the coverage afforded to him under the umbrella policy. Farm Bureau argues that the determination of Mr. Rodriguez's third-party demands against the insurance agents, Mr. Brignac and Mr. Trahan, regarding the alleged negligent procurement of polices has no bearing on the determination as to whether coverage is provided under the policies at issue in this appeal. We agree. Review of the record reveals that these claims are ongoing and the judgment at issue in the instant appeal does not address the negligence or liability of the insurance agents. As noted above, coverage is a question of law and summary judgment may be rendered on the issue of insurance coverage alone, even where genuine issues of material fact exist as to liability or damages. Simmons v. Weiymann, 943 So.2d at 425. Questions regarding evidence as to the liability of the third-party defendant insurance agents do not raise genuine issues of material fact as to coverage.

CONCLUSION

For the above reasons, we affirm the November 12, 2015 judgment of the trial court dismissing with prejudice the claims of Marcella Hurst, and Michael Rodriguez, against Louisiana Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Mutual Insurance Company. All costs of this appeal are assessed to the plaintiff/appellant, Marcella Hurst.

AFFIRMED.

FOOTNOTES

1.   To the extent any conflict exists between the endorsement and the other insurance clause in the policy, the endorsement must prevail. Crokern v. Main Insurance Co., Chicago, Illinois, 268 So.2d 138, 140 (La. App. 1st Cir.), writ not considered, 263 La. 608, 268 So.2d 673 (1972);  Zeitoun v. Orleans Parish School Board, 2009–1130 (La. App. 4th Cir. 3/3/10), 33 So.3d 361, 365, writ denied, 2010–0752 (La. 6/4/10), 38 So.3d 303. Thus, as noted above, we find Endorsement #13 limits coverage under the umbrella policy to only those claims that are covered under the underlying policies listed in Schedule A and overrides any conflicting policy provisions.

2.   All citations to La. C.C.P. art. 966 specifically refer to that article as it existed prior to its amendment by 2014 La. Acts, No. 187, effective August 1, 2014, and by 2015 La. Acts, No. 422, effective January 1, 2016. Motions and appeals pending prior to the effective date must still be adjudicated under the previous version of article 966. 2015 La. Acts, No. 422.

3.   The judgment at issue in the instant appeal addresses only the question of what coverage is afforded to Mr. Rodriguez under the Farm Bureau policies issued to him personally. The issue of Mr. Rodriguez's personal liability has not been considered nor determined by the trial court, nor is it before this court in the instant appeal.

4.   Mr. Rodriguez's appellee brief to this court has adopted all of the arguments of the plaintiff in her appellant brief on the insurance issue.

5.   We find the instant case distinguishable from Sensebe v. Canal Indemnity Co., 2010–0703 (La. 1/28/11), 58 So.3d 441, and Marcus v. Hanover Insurance Co., 98–2040 (La. 6/4/99), 740 So.2d 603, wherein the Louisiana Supreme Court found that certain business exclusions contained in personal policies run afoul of compulsory coverage legislation, and, thus public policy. In Marcus, the supreme court held when an insured is driving his own personal vehicle while in the course and scope of his employment, there is mandated coverage as required by the Louisiana Legislature. The court in Marcus held that to allow such an exclusion:[C]ontravenes the purpose of the Louisiana Motor Vehicle Safety Responsibility Law and La. R.S. 22:655(D), which is to provide compensation for persons injured by the operation of an insured vehicle. If the exclusion were upheld, a named insured driving his personal, insured vehicle in his own or someone else's business would be denied coverage. This result would undermine the intent and purpose of the statutory scheme enacted to ensure that all Louisiana motorists have available to them automobile liability insurance coverage. The statutory scheme is intended to attach financial protection to the vehicle regardless of the purpose for which the vehicle is being operated. Marcus, 740 So.2d at 608.In Sensebee, the supreme court, noting Marcus, held that La. R.S. 32:900(B)(2) requires that motor vehicle liability policies cover not only the insured driver but also to any driver who drives the insured car with the permission of the insured. Sensebee, 58 So.3d at 447–449. However, the instant matter is distinguishable. Here, Mr. Rodriguez was not operating his own vehicle while in the course and scope of his employment, but was operating RCC's vehicle, which was a covered vehicle under a different liability policy.

6.   In Peyton v. Bseis, 680 So.2d at 84, the Fourth Circuit explained:In employment situations, the family automobile policy is not designed to cover an employer's vehicle regularly used by the employee for employment purposes (the employer should cover these risks), or an employer's vehicle regularly used by the employee for personal purposes (the employee should cover these risks at an additional premium if the employer does not cover them).

WELCH, J.

Holdridge J., concurs

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