Alwyn J. Boutte, Sr. v. Fireman's Fund County Mutual Ins. Co.
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Opinion
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-34
ALWYN J. BOUTTE, SR.
VERSUS
FIREMAN’S FUND COUNTY MUTUAL INS. CO., ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20014596 HONORABLE JOHN DAMIAN TRAHAN, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and J. David Painter, Judges.
REVERSED AND REMANDED.
Lawrence N. Curtis Curtis & Lambert P. O. Box 80247 Lafayette, LA 70598-0247 Telephone: (337) 235-1825 COUNSEL FOR: Plaintiff/Appellant - Alwyn J. Boutte, Sr.
Michael Paul Bienvenu Seale, Smith, Zuber & Barnette 8550 United Plaza Boulevard - #200 Baton Rouge, LA 70809 Telephone: (225) 924-1600 COUNSEL FOR: Defendants/Appellees - Eva Bernal and Fireman’s Fund County Mutual Insurance Company James Paul Doherty Voorhies & Labbe’ 700 St. John Street Lafayette, LA 70502-3527 Telephone: (337) 232-9700 COUNSEL FOR: Defendant/Appellee - Eva Bernal THIBODEAUX, Chief Judge.
Plaintiff, Alwyn J. Boutte, Sr., was injured and his guest passenger was
killed when Boutte’s vehicle was hit from behind and burst into flames. Boutte sued
the lessee, Eva Bernal, a Texas resident, and the insurer of the Ford van that hit him,
Fireman’s Fund County Mutual Insurance Company (“Fireman’s Fund”). Boutte
subsequently amended his petition to add the driver and the passenger of the van,
both Texas residents. Both defendants filed motions for summary judgment, arguing
that they had no liability because the driver of the van was not driving the van with
Bernal’s permission, the driver was not an employee of Bernal at the time of the
accident, and the driver was an excluded driver under Texas law. The trial court first
granted the motion for summary judgment of Bernal in 2003, and in 2005 the trial
court granted the motion for summary judgment of Fireman’s Fund. Boutte filed this
appeal. For the following reasons, we reverse the judgments of the trial court. There
are genuine issues of material fact which remain unresolved. Further, Louisiana, not
Texas, law applies which invalidates the named-driver exclusion under this
commercial automobile liability policy.
I.
ISSUES
We must decide:
(1) whether the appeal of the summary judgment in favor of Eva Bernal is properly before this court;
(2) whether the law of Louisiana or the law of Texas applies in determining insurance coverage in this case; and,
(3) whether the trial court erred in granting summary judgment in favor of Eva Bernal and Fireman’s Fund County Mutual Insurance Company.
1 II.
FACTS AND PROCEDURAL HISTORY
On the afternoon of March 26, 2001, Alwyn J. Boutte, Sr., a sixty-year-
old Louisiana resident, was driving a 1987 Dodge van on Interstate 10 near Lafayette.
Boutte stopped behind a Mitsubishi that had stopped due to construction along the
highway. While stopped, Boutte was rear-ended by a 1998 Ford van, and Boutte’s
vehicle burst into flames. Boutte was injured, and his guest passenger was burned to
death. The 1998 Ford van (hereinafter “the van”) was allegedly being driven by
Texas resident Juan Lara who was traveling with Ruben Lara. At the time of the
accident, the van was being leased by Eva Bernal, a twenty-three-year-old single
mother of four from El Salvador.
Bernal had purchased commercial coverage on the van from Fireman’s
Fund in Texas. The effective dates of the policy were October 9, 2000 through
October 9, 2001, and the liability limit was $100,000.00. Bernal testified that she did
not have a driver’s license at the time of the accident on March 26, 2001, because she
could not read or write English. She testified that she had driven without a license
in the past. However, she also testified that she had had a Texas driver’s license at
one point.
Bernal further testified that, at the time of the accident on March 26,
2001, she had been in business with her brother, Jose Bernal, for about a month,
installing and repairing floors and concrete. She testified that they needed help and
had to hire people to help them. Then she testified that they hired people only to
drive for them. Bernal testified that they had hired Juan Lara and Ruben Lara to drive
for them because the Laras could read. However, she testified that she did not know
whether they knew any English; she had heard them speak only Spanish.
2 On September 10, 2001, Boutte filed suit against Eva Bernal and
Fireman’s Fund, alleging that Juan Lara was driving the van with the permission of
Eva Bernal and while in the scope of his employment with Eva Bernal.
Eva Bernal filed a motion for summary judgment, attaching an expired
work permit card, portions of her deposition, and the insurance policy which
contained an endorsement excluding Juan Lara from coverage under the policy. In
her motion for summary judgment, Eva Bernal asserted that Boutte’s theory of
recovery against her was based upon respondeat superior, or the vicarious liability
of an employer for an employee, and that Juan Lara did not work for her at the time
of the accident. At one point in her deposition, Bernal stated that Juan Lara had
worked for her for the last time about two weeks before the accident. At another
point, she testified that Juan Lara was not her employee at the time of the accident
and that he had not worked for her from the time he was taken off of her insurance.
However, when he actually worked for her and when or whether he was removed
from insurance coverage by Eva Bernal is not clear, as the record contains numerous
instances of conflicting information and testimony.
Eva Bernal ostensibly kept no business records whatsoever. In her
motion for summary judgment, Bernal stated, “A named driver exclusion removing
Juan Lara from Eva Bernal’s automobile liability policy was signed by Bernal on
October 30, 2000.” However, in her deposition, Bernal testified that she and her
brother started the business of repairing and installing floors and pouring concrete to
repair parking lots in 2001 about a month before the accident on March 26, 2001.
She also testified that Juan Lara started working for her about a month before the
accident and that he worked for her for about a month. Therefore, the business for
which Bernal hired Juan Lara did not exist on October 30, 2000, at the time she
alleges to have excluded him from coverage. Additionally, according to Bernal’s 3 testimony, Juan Lara did not work for her at the time she alleges to have signed the
exclusion naming him as an excluded driver. As the record will reveal, the exclusion
itself contains conflicting information and does not contain date information next to
the signature line.
The record contains an endorsement wherein Bernal was notified that an
additional premium of $624.00 would be added as a 33% surcharge “for drivers Juan
Lara and Eva Bernal, due to age and driving record.” This endorsement was made
effective retroactive to the effective date of the policy, October 9, 2000. However the
date typed at the bottom of the form is January 3, 2001. We note again that the
January 3, 2001 notification lists the driver, Juan Lara, whom Bernal testified that she
hired a month before the accident on March 26, 2001. Yet, Juan Lara was the subject
of a surcharge almost three months before the accident.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-34
ALWYN J. BOUTTE, SR.
VERSUS
FIREMAN’S FUND COUNTY MUTUAL INS. CO., ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20014596 HONORABLE JOHN DAMIAN TRAHAN, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and J. David Painter, Judges.
REVERSED AND REMANDED.
Lawrence N. Curtis Curtis & Lambert P. O. Box 80247 Lafayette, LA 70598-0247 Telephone: (337) 235-1825 COUNSEL FOR: Plaintiff/Appellant - Alwyn J. Boutte, Sr.
Michael Paul Bienvenu Seale, Smith, Zuber & Barnette 8550 United Plaza Boulevard - #200 Baton Rouge, LA 70809 Telephone: (225) 924-1600 COUNSEL FOR: Defendants/Appellees - Eva Bernal and Fireman’s Fund County Mutual Insurance Company James Paul Doherty Voorhies & Labbe’ 700 St. John Street Lafayette, LA 70502-3527 Telephone: (337) 232-9700 COUNSEL FOR: Defendant/Appellee - Eva Bernal THIBODEAUX, Chief Judge.
Plaintiff, Alwyn J. Boutte, Sr., was injured and his guest passenger was
killed when Boutte’s vehicle was hit from behind and burst into flames. Boutte sued
the lessee, Eva Bernal, a Texas resident, and the insurer of the Ford van that hit him,
Fireman’s Fund County Mutual Insurance Company (“Fireman’s Fund”). Boutte
subsequently amended his petition to add the driver and the passenger of the van,
both Texas residents. Both defendants filed motions for summary judgment, arguing
that they had no liability because the driver of the van was not driving the van with
Bernal’s permission, the driver was not an employee of Bernal at the time of the
accident, and the driver was an excluded driver under Texas law. The trial court first
granted the motion for summary judgment of Bernal in 2003, and in 2005 the trial
court granted the motion for summary judgment of Fireman’s Fund. Boutte filed this
appeal. For the following reasons, we reverse the judgments of the trial court. There
are genuine issues of material fact which remain unresolved. Further, Louisiana, not
Texas, law applies which invalidates the named-driver exclusion under this
commercial automobile liability policy.
I.
ISSUES
We must decide:
(1) whether the appeal of the summary judgment in favor of Eva Bernal is properly before this court;
(2) whether the law of Louisiana or the law of Texas applies in determining insurance coverage in this case; and,
(3) whether the trial court erred in granting summary judgment in favor of Eva Bernal and Fireman’s Fund County Mutual Insurance Company.
1 II.
FACTS AND PROCEDURAL HISTORY
On the afternoon of March 26, 2001, Alwyn J. Boutte, Sr., a sixty-year-
old Louisiana resident, was driving a 1987 Dodge van on Interstate 10 near Lafayette.
Boutte stopped behind a Mitsubishi that had stopped due to construction along the
highway. While stopped, Boutte was rear-ended by a 1998 Ford van, and Boutte’s
vehicle burst into flames. Boutte was injured, and his guest passenger was burned to
death. The 1998 Ford van (hereinafter “the van”) was allegedly being driven by
Texas resident Juan Lara who was traveling with Ruben Lara. At the time of the
accident, the van was being leased by Eva Bernal, a twenty-three-year-old single
mother of four from El Salvador.
Bernal had purchased commercial coverage on the van from Fireman’s
Fund in Texas. The effective dates of the policy were October 9, 2000 through
October 9, 2001, and the liability limit was $100,000.00. Bernal testified that she did
not have a driver’s license at the time of the accident on March 26, 2001, because she
could not read or write English. She testified that she had driven without a license
in the past. However, she also testified that she had had a Texas driver’s license at
one point.
Bernal further testified that, at the time of the accident on March 26,
2001, she had been in business with her brother, Jose Bernal, for about a month,
installing and repairing floors and concrete. She testified that they needed help and
had to hire people to help them. Then she testified that they hired people only to
drive for them. Bernal testified that they had hired Juan Lara and Ruben Lara to drive
for them because the Laras could read. However, she testified that she did not know
whether they knew any English; she had heard them speak only Spanish.
2 On September 10, 2001, Boutte filed suit against Eva Bernal and
Fireman’s Fund, alleging that Juan Lara was driving the van with the permission of
Eva Bernal and while in the scope of his employment with Eva Bernal.
Eva Bernal filed a motion for summary judgment, attaching an expired
work permit card, portions of her deposition, and the insurance policy which
contained an endorsement excluding Juan Lara from coverage under the policy. In
her motion for summary judgment, Eva Bernal asserted that Boutte’s theory of
recovery against her was based upon respondeat superior, or the vicarious liability
of an employer for an employee, and that Juan Lara did not work for her at the time
of the accident. At one point in her deposition, Bernal stated that Juan Lara had
worked for her for the last time about two weeks before the accident. At another
point, she testified that Juan Lara was not her employee at the time of the accident
and that he had not worked for her from the time he was taken off of her insurance.
However, when he actually worked for her and when or whether he was removed
from insurance coverage by Eva Bernal is not clear, as the record contains numerous
instances of conflicting information and testimony.
Eva Bernal ostensibly kept no business records whatsoever. In her
motion for summary judgment, Bernal stated, “A named driver exclusion removing
Juan Lara from Eva Bernal’s automobile liability policy was signed by Bernal on
October 30, 2000.” However, in her deposition, Bernal testified that she and her
brother started the business of repairing and installing floors and pouring concrete to
repair parking lots in 2001 about a month before the accident on March 26, 2001.
She also testified that Juan Lara started working for her about a month before the
accident and that he worked for her for about a month. Therefore, the business for
which Bernal hired Juan Lara did not exist on October 30, 2000, at the time she
alleges to have excluded him from coverage. Additionally, according to Bernal’s 3 testimony, Juan Lara did not work for her at the time she alleges to have signed the
exclusion naming him as an excluded driver. As the record will reveal, the exclusion
itself contains conflicting information and does not contain date information next to
the signature line.
The record contains an endorsement wherein Bernal was notified that an
additional premium of $624.00 would be added as a 33% surcharge “for drivers Juan
Lara and Eva Bernal, due to age and driving record.” This endorsement was made
effective retroactive to the effective date of the policy, October 9, 2000. However the
date typed at the bottom of the form is January 3, 2001. We note again that the
January 3, 2001 notification lists the driver, Juan Lara, whom Bernal testified that she
hired a month before the accident on March 26, 2001. Yet, Juan Lara was the subject
of a surcharge almost three months before the accident.
The named driver exclusion itself, which purports to exclude the driver
Juan Lara, is a preprinted form with blanks filled in by hand. All names were
handwritten. The top of the form showed an effective date of 10/30/00 that was
handwritten, not typed. It contained a date stamp at the bottom bearing the following
information on three lines, “Austin Mar 08 2001 Surplus.” Handwritten beneath the
stamp with an arrow pointing to the stamp was the following, “Re-averaged surcharge
eff. 2-8-01, due to receipt date of exclusion. (Back 30 days[)].” Also handwritten on
the form was the dollar amount of “$127.00” and the following information: “Endt
#5.” As previously indicated, there is no date line anywhere near the signature line
for the insured to actually date the document that he or she is signing.
The record contains another endorsement made effective on February 8,
2001, which decreases the surcharge from 33% to 23% and indicates a return
premium of $127.00 “due to receipt of signed exclusion for Juan Lara.” A typed line
at the bottom of the form states as follows: “ENDT #5/HWM 05-07-01.” 4 The policy contains yet another endorsement in the record indicating an
additional premium and surcharge for driver Philipe Castro, “due to driving record.”
It has an effective date of March 7, 2001, and contains the typed line “ENDT
#6/HWM 05-07-01.” All of the various endorsements and policy changes regarding
the different drivers and different vehicles being covered appear to have effective
dates and processing dates, rather than actual dates, and back-dating is evident as
well. Therefore, it is impossible to ascertain actual dates with regard to when the
changes were requested. However, all of the date information in the policy conflicts
with the testimony in Eva Bernal’s deposition, which conflicts with itself, regarding
when Juan Lara worked for Bernal.
Eva Bernal further testified in her deposition that she could not read,
because she had never been to school, but that she could sign her name. The copy of
her expired work permit card in the record contains what appears to be her signature.
There, the name, EVA BERNAL, is scrawled in capital letters across the card beneath
her typed name; it is hand printed, and the letters are unevenly spaced. Bernal at one
point in her deposition answered with reference to the exclusion that, “Yes, I signed
it.” However, the policy exclusion in the record did not contain a signature similar
to the one printed in capital letters on the permit card; it did not contain any signature.
Rather, the exclusion contained a line with a large “X” that had been
traced over several times. On the line next to the “X” were the handwritten cursive
initials “EBE,” which were connected and written in script, not printed, and there
were no spaces between the lettering. Since Bernal testified that she had never been
married and that all five of her children had the last name of “Bernal,” it is not known
why the initials ended in “E.” Moreover, it is significant that in her deposition,
Bernal specifically testified that she never signed her name using her initials.
5 Bernal further testified that she talked to Miss Gutierrez, apparently the
insurance agent sometimes referred to by Bernal as the notary, at the insurance
company about removing Juan Lara after Miss Gutierrez informed her that he had
many traffic violations, which would cause her coverage to go up. However, Bernal
stated that she did not know whether Juan Lara was actually ever removed. Bernal
also testified that she signed a document but, since she could not read, she did not
know whether that document was adding or removing Juan Lara from her insurance.
She further testified that, “I recall that I signed a document and another one that I
gave to him.” When questioned about this other document, Bernal testified, “Well
the notary called me and told me that it was for him to be able to pay all of the traffic
violations [sic] tickets that he had.”
In her deposition, Bernal also indicated that she advised Juan Lara that
he was not insured and was not to drive any vehicle owned or leased by her. She
testified that she did not see Juan Lara or anyone with Ruben when Ruben picked up
the van. Bernal testified that Ruben Lara wanted to borrow the vehicle “because there
was an automobile he wanted to come look [sic] that he was interested in buying. He
wanted to come see it. If I like it, well, I’ll bring it back, but he did not tell me that
he was coming with someone else.” In response to the question about how Ruben
planned to get the car back to Texas, she testified, “He was not bringing the money
to buy it.” Bernal further testified that she did not do business in Louisiana and that
neither Juan nor Ruben Lara was in the scope of his employment when the accident
occurred. She testified that her brother Jose usually went out and got the customers
for their business, using business cards and calling cards. When asked to show a
card, she said that she did not have any.
In addition to the numerous instances of conflicting testimony above, in
response to a question about when Juan last worked for her before the accident, 6 Bernal stated, “Two weeks before and then I did not see him again. I don’t know
where he is.” However, she later stated that the last time she saw Juan Lara was after
the accident. She specifically stated, “When he had the accident, he came over to the
house and said what happened. . . . That Ruben Lara had had an accident.” Bernal
vacillated as to whether Juan told her about the accident on the day of, or the day
after, the accident, and at one point she gave the specific date of March 29th. At one
point, she seemed to be unsure whether Ruben was with Juan when Juan told her
about the accident, yet later she was positive that they came together. She testified
that the first time she learned of the accident Ruben was the one who told her. She
also testified that after they told her about the accident, she never saw either of them
again.
Bernal testified that she did not learn that Juan Lara was the driver until
the insurance company informed her of the fact. She stated, “I only called the
insurance company and that’s when I found out this man was driving.” When asked
what day she had called the insurance company and had this conversation, Bernal
stated, “I do not remember. They called me.” She then testified that she did not
remember the date and guessed that it was fifteen days or a month after the accident,
and she stated, “And I was not the one that called.” Bernal testified that she did not
know whether Juan and Ruben Lara were related to each other or where they could
be located. She testified that they hung out together. She denied that she had ever
lived with either of them.
Bernal testified that she stopped installing floors with her brother Jose
about two weeks after the accident. Therefore, the business was apparently in
existence for about six weeks, since it began about a month before the accident and
ended two weeks after the accident. Interestingly, Bernal also testified that Ruben
Lara had been employed by her as a driver for about three months. There were other 7 vehicles insured under the subject policy, and Bernal testified that she and her brother
had tried to start a previous home repair business but they could not start a company
because they did not have a state license or social security numbers, even though Eva
Bernal had been working in the United States since 1995. She testified that she had
always been paid in cash and always paid her employees in cash. There were no
affidavits, depositions or statements of any witnesses attached to Bernal’s motion for
summary judgment. It referenced her response to an interrogatory, but did not attach
the responses.
Boutte argued that Bernal’s motion for summary judgment was
unsupported except for her own self-serving, conflicting testimony and that the party
opposing the motion must have his allegations taken as true and must receive the
benefit of the doubt when his assertions conflict with the movant. He pointed out the
conflicts in Bernal’s own testimony and that there were genuine issues of material
fact regarding the employment of Juan Lara. Boutte alleged that Bernal’s credibility
was at issue and that the trial court was prohibited from making credibility
determinations at the summary judgment level.
On August 22, 2003, the trial court signed a judgment granting the
motion for summary judgment of Eva Bernal. The record does not contain written
reasons for the judgment. The dismissal of Eva Bernal appears to have been based
upon the named-driver exclusion and the deposition testimony of Eva Bernal alone
wherein she denies the employment of Juan Lara and denies giving him permission
to drive the covered automobile. The trial court marked through the paragraph in the
judgment that sought to designate it as a final judgment.
Fireman’s Fund filed a motion for summary judgment asserting that no
coverage existed under the policy issued to Eva Bernal. The motion referenced
Exhibit C, an affidavit stating that only one policy was issued to Eva Bernal with 8 effective dates of October 9, 2000 to October 9, 2001. However the affidavit marked
as Exhibit C, which purports to be that of the underwriter, is completely blank with
regard to affiant and notary names and dates; it is not signed, not dated, and not
notarized. Moreover, every reference in the motion to the affidavit contains a blank
line where the affiant-underwriter’s name should be.
The motion for summary judgment points to language in the policy and
states that Fireman’s Fund is liable only if an “insured” is legally condemned to pay
damages for bodily injury and property damage caused directly by the insured or for
which the insured is vicariously liable. Fireman’s Fund argued that the court had
already determined that Eva Bernal was not vicariously liable and that the only
remaining theory for coverage required that Juan Lara qualify as an insured.
Fireman’s Fund then pointed to the named-driver exclusion in its policy and argued
that the exclusion was enforceable under Texas law, which governed the insurance
policy.
The motion for summary judgment of Fireman’s Fund relied solely on
the exclusion and the deposition of Eva Bernal. It attached no depositions or
affidavits or statements of witnesses or police officers in Louisiana, it attached no
statement by the Fireman’s Fund agent in Texas or the neighbors or relatives of the
defendants in Texas, and the record is completely void of any such supporting
evidence. While the affidavit referenced as Exhibit C and purporting to be that of the
Fireman’s Fund underwriter was blank, we were able to locate an unmarked affidavit
received by the clerk of court on August 15, 2005, two months after Fireman’s Fund
filed its motion for summary judgment on June 14, 2005. The affidavit was signed
by Darin Freebern in Cook County Illinois, identifying the subject policy and stating
that no other policy was issued to Eva Bernal by Fireman’s Fund “applicable to any
9 occurence on March 26, 2001.” However, the notary block, while signed, contains
the following date information: “this 22 day of 2005 2005.”
On August 31, 2005, the trial court signed a judgment granting the
motion for summary judgment filed by Fireman’s Fund and dismissed Boutte’s case.
Boutte filed this timely appeal. Finding various issues of fact and law in this case,
we reverse both summary judgments by the trial court.
III.
LAW AND DISCUSSION
Standard of Review
Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-0066 (La. 7/6/04), 880 So.2d 1. The movant bears the burden of proof. La. C.C.P. art. 966(C)(2). If the movant meets this initial burden, the burden then shifts to plaintiff to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So.2d 131, 137. Thereafter, if plaintiff fails to meet this burden, there is no genuine issue of material fact and defendant is entitled to summary judgment as a matter of law. Id. This court has recognized that a “genuine issue” is a “triable issue,” an issue in which reasonable persons could disagree. Jones v. Estate of Santiago, 03-1424 (La. 4/14/04), 870 So.2d 1002, 1006 (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La. 7/5/94), 639 So.2d 730, 751). Further, this court has defined a “material fact” to be one in which “its existence or nonexistence may be essential to plaintiff’s cause of action under the applicable theory of recovery.” Id.
Champagne v. Ward, 03-3211, pp. 4-5 (La. 1/19/05), 893 So.2d 773, 776-77.
“Summary judgment declaring a lack of coverage under an insurance
policy may not be rendered unless there is no reasonable interpretation of the policy,
when applied to the undisputed material facts shown by the evidence supporting the
10 motion, under which coverage could be afforded.” Adams v. Thomason, 32,728, p.
4 (La.App. 2 Cir. 3/1/00), 753 So.2d 416, 420, writ denied, 00-1221 (La. 6/16/00),
746 So.2d 965.
Whether the Dismissal of Eva Bernal is Properly Before the Court
The judgment appealed from dismissed Fireman’s Fund via final
judgment signed on August 31, 2005. Prior to signing the final judgment, the trial
court also signed a judgment on August 22, 2003, granting summary judgment in
favor of Eva Bernal and dismissing her from the case. The court specifically declined
to designate the judgment dismissing Bernal as a final judgment by marking out the
paragraph inserted by her in the judgment for that purpose. Eva Bernal now contends
that the interlocutory judgment dismissing her pursuant to her motion for summary
judgment is not appealable because that interlocutory ruling is not sufficiently related
to the final judgment dismissing Fireman’s Fund. She further argues that her
dismissal had no impact on Boutte’s cause of action against Fireman’s Fund. We
disagree.
Pursuant to its written policy, Fireman’s Fund has argued that it is liable
only for “sums an insured legally must pay as damages.” Therefore, under the theory
of defense asserted by Fireman’s Fund, the dismissal of the insured, Eva Bernal, is
directly related to the dismissal of Fireman’s Fund and does impact Boutte’s cause
of action against Fireman’s Fund. The general principle is that when, an unrestricted
appeal is taken from a final judgment, the appellant is entitled to seek review of
adverse interlocutory rulings prejudicial to him in addition to the review of the final
judgment on appeal. Landry v. Leonard J. Chabert Med. Ctr., 02-1559 (La.App. 1
Cir. 5/14/03), 858 So.2d 454, writs denied, 03-1748, 03-1752 (La. 10/17/03), 855
So.2d 761.
11 Our courts have held that there are exceptions to this general rule,
particularly where writs have been taken and decided and where the doctrine of law
of the case applies. However, there is no evidence of a writ application on the
dismissal of Eva Bernal, and we find no exception to the general rule in this case.
Accordingly, we will review Boutte’s assignment of error regarding the dismissal of
Eva Bernal in the interlocutory judgment of August 22, 2003.
The Summary Judgment Dismissals of Eva Bernal and Fireman’s Fund
The Fireman’s Fund commercial policy issued to Eva Burnal defined its
insureds under the heading of WHO IS AN INSURED as follows:
The following are insureds:
a. You for any covered auto.
b. Anyone else while using with your permission a covered auto you own, hire or borrow . . . .
c. Anyone liable for the conduct of an insured described above . . . .
Boutte’s petition alleged that Juan Lara was operating the 1998 Ford van
with the permission of Eva Bernal and within the scope of his employment with Eva
Bernal at the time of the accident. As previously indicated, Eva Bernal denied both
allegations and moved for summary judgment, which was granted in August 2003.
Based upon Bernal’s deposition testimony and her dismissal in 2003 and based upon
the exclusion in the policy, Fireman’s Fund moved for summary judgment, which was
granted in August 2005. Boutte asserts that it was error for the trial court to grant
summary judgment because the defendants failed to carry their burden of
demonstrating that there were no material issues of fact regarding the circumstances
of Juan Lara’s and Ruben Lara’s trip to Louisiana and Juan Lara’s employment with
Bernal at the time of the accident and because, under a choice-of-law analysis, the
12 exclusion relied upon in the policy is unenforceable. Boutte argues that Bernal’s only
support for her assertions was her own conflicting, self-serving testimony. We agree.
Our jurisprudence provides that a motion for summary judgment is
properly granted only if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue of material fact and that the mover is entitled to judgment as a matter of law.
Because the movant has the burden of establishing that no material factual issue
exists, inferences to be drawn from the underlying facts contained in the materials
before the court must be viewed in the light most favorable to the party opposing the
motion. “The party who defends against the motion for summary judgment must have
his properly filed allegations taken as true and must receive the benefit of the doubt
when his assertions conflict with those of the movant.” Schroeder v. Bd. of Sup'rs of
La. State Univ., 591 So.2d 342, 345 (La.1991) (citations omitted).
In the present case, in support of her motion for summary judgment, Eva
Bernal attached Boutte’s original petition, her own deposition testimony, her expired
work permit, and the Fireman’s Fund insurance policy with the endorsement
excluding Juan A. Lara as a covered driver. As indicated in the factual section above,
the deposition of Eva Bernal was riddled with discrepancies and self-conflicting
testimony. She contradicted herself repeatedly. She argues that, while her testimony
varied as to exactly when Juan Lara stopped working for her, she clearly testified that
he was not working for her at the time of the accident. We found nothing clear about
her testimony.
Because we are reviewing this case de novo, we are not bound by the
trial court’s discretion. Without supporting testimony or business records or evidence
of any kind, we find that numerous issues of material fact exist as to what the
relationship was between Eva Bernal and Juan Lara and Ruben Lara; whether Eva 13 Bernal was the employer of Juan Lara at the time of the accident; whether Juan and
Ruben Lara’s trip to Louisiana was in any way connected to repairing homes or
installing flooring here; and whether Eva Bernal otherwise gave Juan express or
implied permission as a friend or acquaintance to drive the van at the time of the
accident.
In fact, there are no police reports or copies of drivers’ licenses in the
record at all to indicate who was driving the insured vehicle, who was licensed or not
licensed and how many Louisiana violations occurred on the date of the accident.
The only solid identification in the record is Boutte’s chauffeur’s license and his
medical records. The testimony of Eva Bernal created more factual issues than it
resolved. Moreover, as will be discussed below, Eva Bernal was not entitled to
summary judgment as a matter of law. Because Fireman’s Fund relied solely on the
testimony of Eva Bernal and the exclusion in the policy, our position regarding
Fireman’s Fund is the same.
The Fireman’s Fund Exclusion and Choice-of-Law Analysis
Boutte argues that the trial court’s reliance on Texas law is misplaced
and that the named-driver exclusion in the Fireman’s Fund policy is not enforceable
because it violates the public policy of Louisiana.
The exclusion in the Fireman’s Fund policy indicates that it is a
“Business Auto Coverage Form” and contains the following language:
You agree that none of the Insurance coverage afforded by this policy shall apply while Juan A Lara (The Excluded Driver) is operating a covered auto or any other motor vehicle. You further agree that this endorsement will also serve as a rejection of uninsured/underinsured motorists coverage and personal injury protection coverage while a covered auto or any other motor vehicle is operated by the excluded driver.
14 Boutte argues that Louisiana’s public policy regarding liability insurance
holds that liability policies are issued “for the benefit of all injured persons” pursuant
to La.R.S. 22:655(D). He further argues that, in keeping with that public policy, La.
R.S. 32:900(B)(2)(d) limits the circumstances under which coverage may be excluded
in a commercial automobile liability policy such as the one at issue in this case.
Louisiana Revised Statutes 32:900 addresses named-driver exclusions
in two instances, as follows:
La.R.S. 32:900(L)(1) provides in pertinent part as follows:
Notwithstanding the provisions of Paragraph (B)(2) of this Section, an insurer and an insured may by written agreement exclude from coverage the named insured and the spouse of the named insured. The insurer and an insured may also exclude from coverage any other named person who is a resident of the same household as the named insured at the time that the written agreement is entered into, and the exclusion shall be effective, regardless of whether the excluded person continues to remain a resident of the same household subsequent to the execution of the written agreement. It shall not be necessary for the person being excluded from coverage to execute or be a party to the written agreement.
(Emphasis added).
La.R.S. 32:900(B)(2)(d) provides:
An owner may exclude a named person as an insured under a commercial policy if the owner obtains and maintains in force another policy of motor vehicle insurance which provides coverage for the person so excluded which is equal to that coverage provided in the policy for which the person was excluded. The alternative coverage is required for both primary and excess insurance.
In the present case, the policy is a commercial or business policy.
Therefore the applicable statute addressing the exclusion is La.R.S. 32:900(B)(2)(d).
Accordingly, under Louisiana law governing named-driver exclusions, the exclusion
in the Fireman’s Fund policy issued in Texas would not be enforceable in Louisiana 15 because no other coverage was maintained for Juan Lara, pursuant to the affidavit
filed in evidence in August 2005. Based upon the clear language in the two
subsections above, the Louisiana legislature intended to specifically limit named-
driver exclusions for the protection of persons injured on Louisiana highways. In
individual policies, the named-driver exclusion is limited to members of the
household. In commercial or business policies, the limitation is more severe where
the intent is to ensure that excluded drivers are nevertheless covered in another policy
of insurance. On the other hand, Texas law differs somewhat.
For example, Texas courts have held that the family member exclusion
contravenes the public policy underlying the Texas Motor Vehicle Safety-
Responsibility Act to protect all potential claimants from damages because it creates
an inequity by stripping family members of coverage while allowing coverage for
everyone else. Accordingly, the Texas courts have determined that the even broader
named-driver exclusion, which focuses on the risk presented by any individual driver,
does not create the same inequitable effects as the family member exclusion. See
Zamora v. Dairyland County Mut. Ins. Co., 930 S.W.2d 739 (Tex.App. 13th Dist.
1996). In so doing, Texas has actually increased allowable exclusions in individual
policies. With regard to the commercial policy at issue herein, Fireman’s Fund argues
that the exclusion is enforceable, and we are not aware of any statute in Texas
providing otherwise.
The Louisiana Supreme Court in Champagne, 893 So.2d 773, concluded
that the appropriate starting point in a multistate case is to conduct a choice-of-law
analysis pursuant to La.Civ.Code arts. 3515 and 3537 to determine which state’s law
applies to the interpretation of the policy. The choice-of-law articles provide as
follows:
La.Civ.Code art. 3515 16 Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.
La.Civ.Code art. 3537. General rule
Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.
Fireman’s Fund argues that under choice-of-law analysis in cases
deciding insurance issues, e.g., Zuviceh v. Nationwide Ins. Co., 00-773 (La.App. 1
Cir. 5/11/01), 786 So.2d 340, writ denied, 01-2141 (La. 11/9/01), 801 So.2d 373, and
its progeny, have applied the foreign state’s laws and not abrogated the insurance
contract. Fireman’s Fund argues repeatedly that “the exact same factors at play in
Zuviceh are present and overwhelmingly weigh in favor [of] not abrogating the
Fireman’s Fund contract issued and delivered in Texas to Ms. Bernal.” We disagree.
At the outset, we note that the injured plaintiff in Zuviceh was a resident of the
17 foreign state, not a resident of Louisiana where the accident occurred, and that the
insurance issue in Zuviceh was the plaintiff’s own UM policy provision.
More specifically, in Zuviceh, the plaintiff was a Mississippi resident
involved in a head-on collision with a Louisiana resident in Slidell, Louisiana. At the
time of the accident, Zuviceh had in force a UM insurance policy that was issued to
her by Nationwide Insurance Company. The UM policy was negotiated and issued
in Mississippi and covered Zuviceh’s vehicle, which was registered in Mississippi.
Zuviceh petitioned the court for a judgment declaring which state’s law governed the
interpretation of the UM policy, Mississippi or Louisiana. The trial court conducted
a choice-of-law analysis and ruled that Mississippi law should apply. In making its
ruling, the trial court determined that Mississippi law applied to interpret the terms
of the Nationwide policy because Mississippi had a more substantial interest in the
uniform application of its laws than Louisiana had in providing an insurance remedy
to an out-of-state resident who sustained an injury while temporarily within
Louisiana’s borders.
Fireman’s Fund also cites Dreisel v. Metropolitan Property & Cas.
Insurance Co., 01-2705 (La.App. 1 Cir. 12/20/02), 836 So.2d 347, writ denied,
03-199 (La. 3/28/03), 840 So.2d 575, which applied Massachusetts law. There, the
plaintiff was a Massachusetts resident and guest passenger in a vehicle owned and
operated by a Louisiana resident. At the time of the accident, Dreisel had in effect
a UM policy issued to her by Metropolitan in Massachusetts, and the vehicle was
registered in Massachusetts. Dreisel sought to collect under the Metropolitan UM
policy. She was denied coverage based on a reduction clause in the policy providing
for a dollar-for-dollar reduction in Metropolitan’s liability based on money that the
insured collected from the tortfeasor. Metropolitan argued that it had no liability
under the UM policy since the tortfeasor’s insurance company had already tendered 18 to Dreisel the per person policy limit of $100,000, plus $5,000 in medical payments,
an amount which exceeded Dreisel’s $50,000 per person UM limit. As a result,
Dreisel filed suit against Metropolitan in Louisiana.
The trial court applied Louisiana law and granted Dreisel’s partial
motion for summary judgment. Metropolitan appealed the trial court’s ruling,
maintaining that Massachusetts law should be applied to a Massachusetts insurance
contract that expressly provided that the policy would be governed by Massachusetts
law. The first circuit reversed, finding that Louisiana’s uninsured motorist statutes
do not automatically apply to foreign state policies, but rather a choice-of-law
analysis must be employed to obtain the appropriate balancing of competing interests
between states. The court cited articles 3515 and 3537 and stated that “[t]he objective
is to identify the state whose policies would be most seriously impaired if its law were
not applied to the issue at hand.” Dreisel, 836 So.2d at 350. In that case, the first
circuit found that Massachusetts law applied to the issue at hand. In both Zuviceh and
Dreisel, the injured plaintiffs were residents of the foreign state, seeking an
interpretation of their own foreign policies.
Fireman’s Fund also cites Norfolk Southern Corp. v. California Union
Insurance Co., 02-369 (La.App. 1 Cir. 9/12/03), 859 So.2d 167, writ denied, 03-2742
(La. 12/19/03), 861 So.2d 579, which applied Virginia law. In Norfolk, the plaintiff
was a Virginia corporation. Norfolk sought a declaration that it had coverage under
several excess comprehensive general liability policies and sought indemnification
for the costs of cleaning up various polluted sites around the United States, including
three sites located in St. Tammany Parish, Louisiana. After citing the choice-of-law
articles, La.Civ.Code arts. 3515 and 3537, the first circuit conducted a lengthy
analysis demonstrative of the reasoning used in the other cited cases involving UM
conflicts. In reviewing the relevant law of Virginia and Louisiana, the Norfolk court 19 found a genuine conflict between the laws of the two states concerning the issue of
the effect of late notice to the insurance company. In determining that Virginia law
should govern certain issues, the first circuit articulated as follows:
Virginia clearly has the more significant contacts with the parties and the transactions at issue in this case. The London Insurers issued the insurance policies in favor of Southern Railway Company and Norfolk Southern Corporation. Southern Railway Company was organized under the laws of Virginia in 1894, and Norfolk Southern Corporation was incorporated in Virginia in 1982. Norfolk and Western Railway Company, which merged with Southern Railway to form Norfolk Southern Corporation, is also a Virginia corporation. All of these companies do business in Virginia. In addition, Norfolk’s main casualty and insurance claims offices are located in Virginia, and Norfolk provided notice of its claims regarding these insurance policies from its offices in Virginia. The remaining plaintiffs are all subsidiaries or controlled companies of Norfolk Southern Corporation incorporated in various places throughout the United States. Although some of these parties conduct business in Louisiana, none is incorporated in Louisiana or has its principal place of business in the state.
Moreover, Virginia was the site of the negotiation and delivery of many of the policies at issue here. Norfolk was represented in the negotiations concerning these policies by its brokers in Virginia, Missouri, and London. All of the policies were delivered to Norfolk in either Virginia or Washington, D.C. No negotiations took place in Louisiana, and no policies were delivered to Norfolk in Louisiana.
Virginia has a compelling interest in the regulation of its insurance industry and in the contractual obligations that are inherent parts thereof. The integrity of the contract is a substantial and real interest. The fact that Congress has allowed fifty states to have their own uniform system of regulations governing insurance strongly suggests that this is a legitimate public purpose. Zuviceh v. Nationwide Insurance Company, 00-0773, p. 7 (La.App. 1st Cir. 5/11/01), 786 So.2d 340, 346, writ denied, 01-2141 (La. 11/9/01), 801 So.2d 373.
In addition, we note that the circumstances of this case are entirely distinguishable from those of In re Combustion, Inc., 960 F.Supp. 1056 (W.D.La. 1/15/97), on which Norfolk relies. That suit involved a class action by 20 several thousand individuals seeking damages for both personal injury and property damage arising out of the operations of a CERCLA Superfund hazardous waste site in Livingston Parish. The plaintiffs filed suit against numerous generators and transporters allegedly responsible for the contamination at the site and their insurers. The defendants also filed cross-claims against their insurers.
The court determined that the public policy of Louisiana and the circumstances of the case required that Louisiana law apply to all actions brought pursuant to the Direct Action Statute. In re Combustion, Inc., 960 F.Supp. at 1057. Specifically, the court focused on La.R.S. 30:2002, which declares the maintenance of a healthy and safe environment for the people of Louisiana “a matter of critical state concern.” In addition, the court considered certain circumstances of the case to be crucial to the analysis, including the direct effect the contamination had on Livingston Parish and its citizens. In re Combustion, Inc., 960 F.Supp. at 1068.
The case before this court, however, does not involve a direct action by injured Louisiana residents against the insurance companies. The only plaintiffs in this suit are the insureds themselves, and the court is only called on to decide issues concerning the interpretation of contracts between the parties to those contracts. We note that the In re Combustion, Inc. court itself distinguished cases such as this one involving a dispute only between insureds and insurers from those involving direct actions by injured parties. In re Combustion, Inc., 960 F.Supp. at 1070-1071.
Moreover, the insurance policies at issue here are comprehensive general liability policies intended to provide indemnity to Norfolk for liability arising out of the conduct of its business, regardless of the location of the risk. It is true that Norfolk’s losses at issue in these appeals occurred in Louisiana and that Louisiana has an interest in ensuring that its environmental sites are remediated; however, no private actions have been filed against Norfolk with respect to any of the Louisiana sites. There is no evidence that any Louisiana resident would be affected by a denial of coverage in this suit, since Norfolk is simply seeking reimbursement for costs it has already paid as response costs ordered by a governmental entity. There is also no evidence that any Louisiana resident has been injured by the contamination at the sites. Therefore, Louisiana’s interest in this case only arises because a Virginia corporation, along with certain of its subsidiaries and controlled companies, has filed suit in Louisiana seeking indemnity under insurance policies delivered 21 entirely outside of Louisiana (and primarily in Virginia) to recover payments it has already made as compensation for damage caused to property located in Louisiana. Such an interest is not sufficient to override the compelling interest Virginia has in regulating its insurance contracts. See Shell Oil Company v. Hollywood Marine, Inc., 97-106, 97-611, p. 8 (La.App. 5th Cir. 10/15/97), 701 So.2d 1038, 1041.
Norfolk, 859 So.2d at 180-82 (emphasis added) (footnotes omitted).
Similarly, in Holcomb v. Universal Insurance Co., 93-1424 (La.App. 3
Cir. 6/1/94), 640 So.2d 718, writ denied, 94-1740 (La. 10/7/94), 644 So.2d 643, a
panel of this court applied Arkansas law to an interpretation of a policy issued and
delivered in Arkansas after conducting a conflict-of-law analysis. There, the accident
occurred in Louisiana, but the Louisiana residents involved had settled out of the suit.
Accordingly, the panel articulated:
The action under consideration herein is likewise a matter of contract interpretation. The insurance policy herein was entered into between an Arkansas insurance company . . . and an Arkansas resident/domiciliary . . . to provide coverage on a vehicle registered, titled and garaged in Arkansas. That policy is being sued on by other Arkansas residents/domiciliaries seeking coverage under that contract (policy) for damages they allegedly sustained. The only Louisiana contacts are the heretofore released tortfeasor and the site of the accident. Neither is relevant to the issues to be decided herein. No Louisiana resident or company is a party to this action; and, inasmuch as a complete release has been executed in favor of all Louisiana parties, the outcome of this action will not affect any policy of or party in this state.
....
. . . In this case, although the accident occurred here and involved a Louisiana resident, the latter is totally unaffected by our decision. Were the circumstances otherwise, i.e., if a Louisiana resident were directly affected, this fact would not necessarily dictate the application of Louisiana law but would be pertinent to a determination of the choice of law to be applied.
Id. at 722 (emphasis added).
22 In Adams v. Thomason, 32,728 (La.App. 2 Cir. 3/1/00), 753 So.2d 416,
writ denied, 00-1221 (La. 6/16/00), 764 So.2d 965, the plaintiff was struck by a
cotton trailer in Richland Parish, Louisiana, while he was leaning on a parked truck
occupied and operated by a Wisconsin resident. The Wisconsin resident had in force
a UM policy that was negotiated and issued to him in Wisconsin by State Farm. The
plaintiff and his wife filed suit in Louisiana, seeking damages for his injuries. State
Farm, the defendant’s insurer, was one of numerous named defendants. The trial
court ruled that the State Farm UM policy provided coverage for the accident but
applied Louisiana law to the State Farm policy. Other Louisiana residents were
involved in and affected by the accident, and the insured was working in Louisiana
at the time of the accident. Accordingly, the court articulated that:
Louisiana had compelling interests that superseded those of Wisconsin and would be adversely affected if Louisiana law were not applied. Louisiana has a substantial interest in regulating awards to victims injured on its highways and in protecting those persons from uninsured and underinsured motorists. Consequently, we find that Louisiana law is applicable to the State Farm policy.
Id. at 427.
As we previously indicated, while not determinative, the residence of the
injured plaintiff is pertinent and is a factor in determining choice-of-law issues. In
the much-cited case of Champagne, the Louisiana Supreme Court found that, under
the facts of that case, Mississippi had a more substantial interest in the uniform
application of its laws governing insurance contracts than Louisiana had in providing
an insurance remedy to an out-of-state resident who was injured while transitorily
within the borders of Louisiana. Champagne, 893 So.2d at 773. Such is not the case
here. In this case, the injured plaintiff, Boutte, was a resident of New Iberia,
Louisiana. He was rear-ended in nearby Lafayette, and he clearly has expectations
of protection from and by the laws of Louisiana. 23 In Dunlap v. Hartford Insurance Co. of Midwest, 04-725, p. 6 (La.App.
1 Cir. 3/24/05), 907 So.2d 122, 125, where the plaintiff was a Louisiana resident who
had been run off of the roadway by a phantom driver, the court found that, where the
accident occurred in Louisiana, and all of the plaintiff’s medical treatment related to
the accident had been and probably would continue to be provided by doctors and
hospitals in Louisiana, the plaintiff “would expect to be protected by its laws,
including Louisiana’s strong public policy to promote full recovery for innocent
accident victims.”
In the present case, Fireman’s Fund has argued that a determination of
whether Texas or Louisiana law is applicable to the enforcement of the insurance
contract is not dependent upon the relationship of the parties in this case to the
insurance contract but to the relationship of the parties in the contract. That is to say,
the injured parties not involved in the contract, whether they be plaintiffs or
defendants, are not factors for consideration. If that were true, then there would be
no balancing of competing interests; every contract between an insured and an insurer
would simply be upheld under the laws of the foreign state, no matter how severe the
injury done in Louisiana to a Louisiana resident and no matter how invasive and
violative of Louisiana policy the foreign contract is. We strongly disagree with this
contention that the choice of law must be based only upon the relationship of the
parties contracting for the insurance. Jurisprudence has held that La.Civ.Code arts.
3515 and 3537 must be read together, as do the articles themselves. In Dunlap, the
court articulated as follows:
Zurich contends the focus of the court’s analysis should be on the parties to the contract, Zurich and Iafrate, rather than the parties to the lawsuit or occurrence, which would include Dunlap. We disagree with this contention, noting first that Article 3515 instructs the court to examine the relationship of each state to the parties and the dispute, and Article 3537 invites analysis of the nature, type, and 24 purpose of the contract, as well as the policies referred to in Article 3515.
Dunlap, 907 So.2d at 124 (emphasis in original).
We will proceed accordingly. In the present case, Fireman’s Fund
argues that the relevant facts require a finding that Texas law be applied in this case
because the policy containing the named-driver exclusion was issued and delivered
to Eva Bernal, who is a Texas resident; the insured vehicle is owned by a Texas
resident, Modesto Paredes, and was leased to Bernal; the insured vehicle was
licensed, registered and garaged in Texas; and the vehicle was allegedly being driven
by a Texas resident, Juan Lara, and not a Louisiana resident. On the other hand, our
de novo review of the record reveals the following:
The contacts with Louisiana are as follows:
Boutte was a sixty-year-old citizen of Louisiana at the time of the accident and has been a resident of New Iberia, Louisiana and Lafayette, Louisiana.
Boutte had a social security number, and he had a valid Louisiana chauffeur’s license that was not to expire until September 2005.
Boutte had also worked as a cook on off-shore boats and was described by his Louisiana physicians as a quiet gentleman with a limp.
At the time of the accident, Boutte was in his vehicle in Lafayette, Louisiana, stopped behind another vehicle that had stopped for construction.
Boutte’s vehicle was owned, garaged and licensed in Louisiana.
Boutte’s vehicle was violently struck from behind in Louisiana, pushed into another vehicle, and burst into flames near his city of residence.
Boutte suffered the loss of his guest passenger in Louisiana.
25 Boutte suffered various injuries including injuries to his back, shoulder, and pelvis and was disabled and hospitalized in Louisiana.
Boutte was treated by physicians in New Iberia and Lafayette, Louisiana.
The investigating police officers are Louisiana residents.
The fire department and ambulances are Louisiana residents.
The coroner is a Louisiana resident.
The accident was in view of Louisiana residents and affected Louisiana residents.
Almost all of the witnesses are residents of Louisiana.
The medical experts are Louisiana owned.
Defendant driver was allegedly in Louisiana to avail himself of Louisiana’s prices on vehicles being sold in Louisiana.
Defendants in the accident are believed to have received medical treatment in Louisiana.
Defendant Fireman’s Fund has offices and does business in Louisiana.
In contrast to the numerous contacts of plaintiff and defendants with
Louisiana as listed above, the contacts with Texas are minimal.
The contacts with Texas are as follows:
Defendants Bernal and the Laras resided and worked in Houston, Texas.
Eva Bernal leased, insured, and garaged the subject vehicle in Texas.
Defendant Fireman’s Fund issued and delivered the insurance policy in Texas.
The driver of the Misubishi is believed to reside in Texas.
However, the negatives outweigh the positives with regard to the
defendants’ contacts with Texas: 26 Defendant Bernal was not a citizen of Texas or any other state.
Defendant Bernal has never incorporated a business in Texas.
Defendant Bernal never received or issued a check for wages in Texas.
Defendant Bernal kept no business records in Texas.
There is no evidence in the record of Texas licenses of any kind for any of the individual defendants in this case.
Defendant Eva Bernal did not obtain a social security number in Texas and testified to not having a social security number.
Defendant Bernal did not have a Texas driver’s license at the time of the accident or for the majority of the time she resided in Texas; and the record contains no evidence of one.
Defendant Bernal has no Texas identification in the record except possibly an expired work permit card possibly issued in Texas; the card is stamped “not valid for reentry to U.S.”
Defendant Bernal’s “business” at the time of the accident existed for about one month and no longer exists, having dissolved two weeks after the accident.
Defendant Bernal did not own real property in Texas.
Defendant Bernal allegedly has no contact in Texas with the men who were driving her vehicle in Louisiana.
While it is true that Texas has an interest in enforcing and protecting the
integrity of its contracts in Texas, Louisiana clearly has the more significant contacts
with the parties and all of the transactions at issue in this case. In fact, Louisiana has
numerous contacts with Fireman’s Fund, which has offices and agents and a very
visible presence in Louisiana. Louisiana clearly has more compelling interests that
supersede those of Texas and would be adversely affected if Louisiana law were not
applied. Louisiana has a more substantial interest in regulating awards to Louisiana
27 citizens injured on Louisiana highways, than Texas has in this case in enforcing a
temporary contract with a non-citizen of its state. Given the facts and circumstances
of this case, the issues herein are a matter of critical state concern and Louisiana
public policy.
The legislature has enunciated public policy concerning the purpose of liability insurance in La.R.S. 22:655(D) which provides, in pertinent part, that “all liability policies . . . are executed for the benefit of all injured persons and their survivors or heirs to whom the insured is liable; and, that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy.” The purpose of the compulsory automobile liability insurance law is not to protect the owner or operator against liability but to provide compensation for persons injured by the operation of insured vehicles. Couch, Cyclopedia Of Insurance Law, Vol. 12A, § 45:682 (2d ed.1981); Cormier v. American Deposit Ins. Co., 95-865 (La.App. 3d Cir. 12/6/95), 664 So.2d 807; Fields v. Western Preferred Casualty Co., 437 So.2d 344 (La.App. 2d Cir.), writ[s] denied, 440 So.2d [528,] 754 (La.1983).
Adams v. Thomas, 98-2003, 98-2005 (La. 4/13/99), 729 So.2d 1041, 1043.
It is also important to note that Fireman’s Fund anticipated contacts with
Louisiana and other states where the language in its contract with Eva Bernal stated:
b. Out of State Coverage Extensions.
While a covered auto is away from the state where it is licensed we will:
(1) Increase the Limit of Insurance for Liability Coverage to meet the limit or limits specified by a compulsory or financial responsibility law in the jurisdiction where the covered auto is being used.
Fireman’s Fund writes insurance in numerous states, including
Louisiana. By its own terms, it anticipated that the insured vehicle would be driven
28 in other states and that the policy would be susceptible to enforcement in other states
under the laws of other states. In Zuviceh, so heavily relied upon by Fireman’s Fund,
the court articulated that an out-of-state coverage provision such as the one above is
a significant factor that distinguishes the application of foreign law in Zuviceh from
other cases wherein no such language exists. The court stated as follows:
In conducting our analysis, we are guided by our previous decision of Francis [ v. Travelers Insurance Co., 581 So.2d 1036, (La.App. 1 Cir.), writs denied, 588 So.2d 1114, 1121 (La.1991)]. However, we are mindful that Francis was decided before the enactment of LSA-C.C. arts. 3515 and 3537. Moreover, we find the fact that the policy at issue in Francis contained a provision regarding consideration of other states’ laws to be crucial to the finding that Louisiana’s law applied. As previously noted, Nationwide’s policy contains no such provision.
Zuviceh, 786 So.2d at 348 (emphasis added).
We also note that, even though Francis, as referenced above in Zuviceh,
was decided before the choice-of-law analysis was codified in La.Civ.Code arts. 3515
and 3537, the first circuit in that case performed an “interest analysis” to determine
whether Louisiana or Ohio law applied to a UM policy. In Francis, the plaintiffs
were Louisiana residents who had been injured in Louisiana while they were guest
passengers in a car owned and driven by Ohio residents. The owner of the car had
an Ohio policy with a UM limitation on liability different from Louisiana’s but also
had an out-of-state coverage provision similar to the one at issue herein. After
conducting the “interest analysis” to determine the choice-of-law state, the court
concluded as follows:
Initially, we note that the Motorists policy does not state that it shall be governed by Ohio law. On the contrary, the policy contains provisions relative to “out of state coverage,” wherein it states that if accidents occur in other states, the policy will be interpreted to provide at least the minimum amounts and types of coverage required by the laws of such other states.
29 Clearly, Ohio has an interest in the uninsured motorist coverage issue. However, Motorists simply could not have contemplated its insured driving only in Ohio and the policy being governed solely by Ohio law. In fact, the territorial provision of the policy includes all of the United States. The contracting parties were surely aware then that the law of any state, including Louisiana, might be applicable to a particular claim.
Louisiana, on the other hand, has a great interest in regulating awards to victims injured on its highways and in protecting its citizens from uninsured or underinsured motorists.
After weighing the interests of both states, we conclude the interest of Louisiana outweighs the interest of Ohio. As such, we hold Louisiana law is applicable in this case.
Francis, 581 So.2d at 1042.
Accordingly, we find that, as a matter of law, Louisiana law applies to
the coverage in this case and that the named-driver exclusion which is against
Louisiana policy is invalid and does not apply to prohibit coverage.
Fireman’s Fund further argues that, even if its named-driver exclusion
were found invalid, the policy can only be reformed to provide minimum coverage
of $10,000/$20,000 pursuant to Marcus v. Hanover Insurance Co., 98-2040 (La.
6/4/99), 740 So.2d 603. We disagree. In Marcus, the court determined that a
business use exclusion contravened the purpose of the Louisiana Motor Vehicle
Safety Responsibility Law and La.R.S. 22:655(D) and reformed the policy to provide
the minimum coverage set forth in our compulsory financial responsibility laws, not
the coverage amount set forth in the policy therein. In the present case, the named-
driver exclusion contravenes Louisiana public policy to protect injured victims in
La.R.S. 22:655(D) and contravenes La.R.S. 32:900(B)(2)(d), which specifically
provides that coverage for the excluded driver in a commercial policy must be
provided in another policy in an amount “equal to that coverage provided in the
30 policy for which the person was excluded.” Accordingly, the Fireman’s Fund policy
in this case will be reformed to provide coverage in the full amount stated in the
IV.
CONCLUSION
Based upon the foregoing, we reverse the judgments of the trial court
which granted summary judgment to Eva Bernal and to Fireman’s Fund. Our de novo
review of the record reveals that genuine issues of fact prohibit summary judgment
in favor of Eva Bernal ad that Fireman’s Fund is not entitled to summary judgment
as a matter of law. Accordingly, we reverse the summary judgment dismissals of Eva
Bernal and Fireman’s Fund and remand the case for a trial on the merits in accordance
with the coverage determinations made herein. All costs of this appeal are assessed
to the defendants in this case.
Related
Cite This Page — Counsel Stack
Alwyn J. Boutte, Sr. v. Fireman's Fund County Mutual Ins. Co., Counsel Stack Legal Research, https://law.counselstack.com/opinion/alwyn-j-boutte-sr-v-firemans-fund-county-mutual-ins-co-lactapp-2006.