Alpaugh ex rel. Alpaugh v. Continental Insurance Co.

863 So. 2d 623, 2003 La.App. 4 Cir. 0710, 2003 La. App. LEXIS 3541, 2003 WL 22976124
CourtLouisiana Court of Appeal
DecidedDecember 10, 2003
DocketNo. 2003-CA-0710
StatusPublished
Cited by1 cases

This text of 863 So. 2d 623 (Alpaugh ex rel. Alpaugh v. Continental Insurance Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alpaugh ex rel. Alpaugh v. Continental Insurance Co., 863 So. 2d 623, 2003 La.App. 4 Cir. 0710, 2003 La. App. LEXIS 3541, 2003 WL 22976124 (La. Ct. App. 2003).

Opinion

| MOAN BERNARD ARMSTRONG, Chief Judge.

This is a coverage dispute between insurers arising out of an automobile accident personal injury suit. Chester T. Al-paugh, III, a Boy Scouts of America (Boy Scouts) volunteer, was driving his son, George Reade Alpaugh (Reade), and two others home to New Orleans from a scouts camping trip in Mississippi when he was involved in a very serious automobile accident. At the time of the accident, Mr. Alpaugh had liability coverage on his car through The Continental Insurance Company (Continental), Policy # US 202844307. He was provided insurance coverage as well through a policy of insurance issued to the Boy Scouts through Liberty Mutual Insurance Company (Liberty Mutual), Policy # TB1-191-409751-128.

As a result of the accident, Katherine T. Alpaugh, Reade’s mother and tutrix, filed suit against the two insurers in 1998. Continental and Liberty Mutual filed cross-motions for summary judgment to declare the order of insurance coverages as between their policies. On September 13, 2000, the trial court denied Continental’s motion and granted Liberty Mutual’s motion, holding that the [^Continental policy provides the first layer of insurance coverage and the Liberty Mutual policy provides a second layer of coverage that is excess to the full limits of the Continental policy.

The parties settled the case, with the exception of Continental’s claim that coverage under its policy is excluded by reason of the policy’s “family member” exclusion. That issue was tried to a jury and resolved in favor of coverage. The trial court by judgment of August 7, 2002, denied Continental’s claim and also designated as final and appealable the court’s previous judgment of September 13, 2000.

Continental appeals from that judgment. Because our de novo review convinces us [625]*625that the Insurance Code and Louisiana jurisprudence require a finding that the Continental automobile policy is primary to the Liberty Mutual general liability excess policy, we affirm the judgment of the trial court.

STATEMENT OF FACTS

The insurers have each filed certified copies of their applicable policies, and there is no dispute as to their correctness.

The Continental policy has a single number, U.S. 202844307. The term “policy” appears solely in the singular throughout the document. On its declarations page, the policy provides in pertinent part:

COVERAGE OPTIONAL EXCESS LIABILITY

Following that disclosure, the declarations page lists:

| «MOTOR VEHICLE(S) 1 HOME LOCATION(S) 1 BOAT(S) 1
LIMIT $1,500,000.

The declarations page does not specify a limit for each of the covered items. Under the heading “PERSONAL LIABILITY”, with respect to automobile coverage, the declarations page lists:

MOTOR VEHICLE LIABILITY LIMIT
PERSONAL LIABILITY VEHICLE(S) 1 BODILY INJURY EACH PERSON $250,000
EACH ACCIDENT $500,000
PROPERTY DAMAGE EACH ACCIDENT $100,000
MEDICAL EXPENSE VEHICLE(S) 1 $ 5,000
MOTOR VEHICLE OPTIONAL COVERAGES LIMIT
250 COMPREHENSIVE COVERAGE VEHICLE(S) 1 COMPREHENSIVE DEDUCTIBLE
30 PER DAY EXTENDED TRANSPORTATION COVERAGE RENTAL REIMBURSEMENT
900 MAXIMUM VEHICLE(S) 1 0/J
100 PER DAY AUTOMOBILE TRIP INTERRUPTION COVERAGE
500 MAXIMUM VEHICLE(S) 1 'C/J
50 TOWING L/J
500 VEHICLES(S) 1 COLLISION DEDUCTIBLE

On the page summarizing premiums for motor vehicles, the total premium is divided as follows: Liability — $1,304; Excess liability — $138; Medical Expense — $50; Comprehensive — $350; and Collision— $326, for a total premium of $2,168.

However, on the Personal Automobile Application, by which Mr. Alpaugh applied for his insurance, below the coverages, limits of liability and premium information is a section entitled “Additional Coverages [illegible word] (Include limit, deductible, premium)”, the following is' printed:

|/‘$1,500,000 xs liability insurance.” Below that is typed in capital letters, “IS ALSO [626]*626AFFORDED ON POLICY.” There is no separate premium listed here for the “$1,500,000 xs liability insurance,” although limit, deductible and premium seem to be required by the form.

The policy provides an eleven-page endorsement entitled, ‘Tour Optional Coverages OPTIONAL EXCESS LIABILITY COVERAGE ENDORSEMENT — LOUISIANA. The endorsement begins, “In consideration of an additional premium, we will provide the coverage described by the provisions of this endorsement.” The endorsement requires the insured to maintain underlying insurance (minimum retained limit) for bodily injury in the amount of $250,000 per person and $500,000 per accident, and for property damage in the amount of $100,000 per accident. The endorsement provides for a $1,000 deductible in lieu of the minimum retained limit against claims covered by the endorsement but not covered by underlying insurance under certain conditions.

The endorsement provides in pertinent part the following with respect to other insurance:

Only in regard to the coverage provided by this endorsement, the Other Insurance provision of the policy’s “GENERAL PROVISIONS” is deleted and replaced by the following:
Where there is other applicable insurance, we will provide coverage as follows:
* * *
b. During the first and subsequent years of this policy, when an amount of “Optional Excess Liability” is shown effective in the Coverage Summary, the coverage provided by this endorsement is excess over any other valid and collectible insurance except:
| B(l) When other insurance is written specifically as excess coverage over the minimum retained limit, we will pay only our share of the loss. Our share is the proportion that our limit of “Optional Excess Liability” bears to the total of all applicable limits.
(2) When other insurance is written specifically as excess coverage over the amount shown in the Coverage Summary for “Optional Excess Liability,” we will pay amounts due above:
(a) the minimum retained limit;
(b) the Deductible; or
(c) the $50,000 Excess Loss Assessment threshold;
up to our “Optional Excess Liability” limit.

Liberty Mutual’s policy, issued to the Boy Scouts, insures, inter alia, Boy Scout volunteer workers participating in an official Scouting activity and in the scope of their duties as such, and the loaners or owners of non-owned automobiles while being used in the scout activities of the Boy Scouts or any Unit.

Liberty Mutual agrees:

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
(A) Personal injury ...

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Bluebook (online)
863 So. 2d 623, 2003 La.App. 4 Cir. 0710, 2003 La. App. LEXIS 3541, 2003 WL 22976124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alpaugh-ex-rel-alpaugh-v-continental-insurance-co-lactapp-2003.