Andrew Richard v. Robert Brasseaux, Jr.

• Court: Louisiana Court of Appeal
• Decided: November 3, 2010
• Docket: CA-0010-0409
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-409 consolidated with 10-410, 10-411

ANDREW RICHARD, ET AL.

VERSUS

ROBERT BRASSEAUX, JR., ET AL.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 83771 C/W 84548 C/W 84592 HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

SHANNON J. GREMILLION JUDGE

Court composed of Oswald A. Decuir, J. David Painter, and Shannon J. Gremillion, Judges.

AFFIRMED.

Michael W. Campbell Caffery, Oubre, Campbell & Garrison, L.L.P. 301 E. Kaliste Saloom Rd. Ste. 301 Lafayette, LA 70508 (337) 232-6581 Counsel for Defendant/Appellee: Robert Brasseaux, Jr.

Peter Forrestt Caviness Dauzat, Falgoust, Caviness & Bienvenu P. O. Box 1450 Opelousas, LA 70571-1450 (337) 942-5811 Counsel for Defendant/Appellee: Louisiana Farm Bureau Casualty Ins. Co. Edward O. Taulbee IV Taulbee & Associates P.O. Box 2038 Lafayette, LA 70502-2038 (337) 269-5005 Counsel for Defendants/Appellees: Louisiana Farm Bureau Mutual Insurance Co. Louisiana Farm Bureau Casualty Ins. Co.

Jeffery F. Speer Doucet & Speer P. O. Box 4303 Lafayette, LA 70502-4303 (337) 232-0405 Counsel for Plaintiffs/Appellants: Susan Richard Jenna Richard Andrew Richard

Christopher Shannon Hardy Penny & Hardy P. O. Box 2187 Lafayette, LA 70502-2187 (337) 231-1955 Counsel for Defendants/Appellees: Allstate Insurance Company Andrew Richard

Scott A. Stefanski Edwards, Stefanski & Zaunbrecher P. O. Box 730 Crowley, LA 70527-0730 (337) 783-7000 Counsel for Plaintiffs/Appellants: Ashley Nero

Max Michael Menard Taulbee & Associates P. O. Box 2038 Lafayette, LA 70502-2308 (337) 269-5005 Counsel for Defendants/Appellees: Louisiana Farm Bureau Mutual Ins. Co. Louisiana Farm Bureau Casualty Ins. Co.

J. Bradley Duhe Ottinger Hebert, L.L.C. P. O. Box 52606 Lafayette, LA 70505-2606 (337) 232-2606 Counsel for Plaintiffs/Appellees: Michelle Matlock Steven R. Matlock

Julian Louis Gibbens, III Doucet & Speer P. O. Box 4303 Lafayette, LA 70502-4303 (337) 232-0405 Counsel for Plaintiffs/Appellants: Susan Richard Jenna Richard Andrew Richard

Tracey A. Biagas-Hill Attorney at Law 400 E. Kaliste Saloom, #8300 Lafayette, LA 70508 (337) 291-1743 Counsel for Defendants/Appellees: Allstate Insurance Company Encompass Insurance

Sean P. Rabalais Attorney at Law 400 E. Kaliste Saloom, Ste 8300 Lafayette, LA 70508 (337) 291-1743 Counsel for Defendants/Appellees: Encompass Insurance Allstate Insurance Company GREMILLION, Judge.

In these consolidated appeals, Ashley Nero and Andrew Richard, Susan

Richard, and Jenna Richard (the Richards) (collectively the plaintiffs) appeal the

grant of summary judgment in favor of Louisiana Farm Bureau Casualty Insurance

Company and Louisiana Farm Bureau Mutual Insurance Company (collectively Farm

Bureau). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the last day of school in May 2005, Jenna Richard was operating a

1999 Pontiac Grand Am.1 Candice Brasseaux was the front-seat passenger. Ashley

Nero and three others, Tiffany Marceaux, Ryan Matlock, and Ryan Leger were seated

in the rear. So inspired was she by the song “Swerve” that began to play on the radio,

Brasseaux jerked the steering wheel causing Richard to lose control of the vehicle.

The vehicle subsequently flipped and landed in a ditch. As a result of this accident,

multiple lawsuits were filed.

This appeal involves two insurance policies issued to Candice

Brasseaux’s mother, Masel Brasseaux. Louisiana Farm Bureau Casualty Insurance

Company issued a standard automobile liability policy, Policy No. A366310, insuring

a 2000 F150 Ford pickup truck (the automobile policy). Louisiana Farm Bureau

Mutual Insurance Company issued a standard homeowner’s policy, Policy No. DP

102732, to Masel, insuring a premise located in Rayne, Louisiana (the homeowner’s

policy).

Farm Bureau first filed a motion for summary judgment on the

automobile policy arguing that there was no coverage under the policy since

1 The vehicle was owned by her father, Andrew Richard.

1 Brasseaux did not have expressed or implied permission to grab the steering wheel.

Farm Bureau then filed a motion for summary judgment on the homeowner’s policy

arguing that there was no coverage under the “Intentional Act” exclusion or the

“Ownership Maintenance and Use” exclusion. Following a February 2009 hearing

on the motions for summary judgment, the trial court granted summary judgment in

Farm Bureau’s favor finding there was no genuine issue of material fact that

Brasseaux did not have express or implied permission to swerve the steering wheel.

It further found that there was no genuine issue of material fact that Brasseaux’s acts

were intentional, excluding any coverage under the homeowner’s policy. The

plaintiffs now appeal.

Nero assigns as error:

1. The trial court’s finding that a guest passenger who grabbed the steering wheel in reaction to a song constituted driving within the exclusion against an unauthorized person using the vehicle and that this act was an intentional act.

2. A genuine issue of material fact was presented whether Brasseaux had implied permission to become a permissive operator of said vehicle.

3. Material fact existed as to whether Brasseaux’s actions constituted an intentional action within Farm Bureau’s policy exclusions.

The Richards, represented by separate counsel, fail to assign any errors,

but present the issue for review as: Whether Farm Bureau is entitled to judgment as

a matter of law according to La.Code Civ.P. art. 966, namely, that there is no genuine

issue of material fact regarding whether Farm Bureau provided coverage.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed do novo. Magnon v.

2 Collins, 98-2822 (La. 7/7/99), 739 So.2d 191. Thus, the appellate court asks the same

questions the trial court asks to determine whether summary judgment is appropriate.

Id. This inquiry seeks to determine whether any genuine issues of material fact exist

and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P.

art. 966(B) and (C). Judgment should be rendered in favor of the movant if the

pleadings, depositions, answers to interrogatories, admissions on file, and affidavits

show a lack of factual support for an essential element of the opposing party’s claim.

Id. If the opposing party cannot produce any evidence to suggest that he will be able

to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.

Material facts are those that determine the outcome of the legal dispute.

Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ

denied, 97-2737 (La. 1/16/98), 706 So.2d 979. In deciding whether certain facts are

material to an action, we look to the applicable substantive law. Id. Finally, summary

judgment procedure is favored and designed to secure the just, speedy, and

inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

The rules concerning the interpretation of insurance contracts were set

forth by this court in State Farm Mutual Automobile Insurance Co. v. Cooper, 97-

1134, p.3 (La.App. 3 Cir. 2/18/98), 707 So.2d 986, 988, writ denied, 98-0713 (La.

5/1/98), 718 So.2d 412, citing Crabtree v. State Farm Insurance Co., 93-0509 (La.

2/28/94), 632 So.2d 736, 741 (footnotes omitted):

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass’n v. Intersate Fire & Casualty Co., 93-0911, P.5 (La. 1/14/94), 630 So.2d 759, 763; Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993); Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991). If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the

3 parties’ intent and the agreement must be enforced as written. Smith, 611So.2d at 1379; Central La. Elec. Co. V. Westinghouse Elec. Corp., 579 So.2d 981, 985(La.1991); Pareti v. Sentry Indem. Co., 536 So.2d 417, 420(La.1988); see La.Civ.Code art. 2046. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Interstate, 93- 0911, p. 5. 630 So.2d at 763; Fertittta v. Palmer, 252 La. 336, 211 So.2d 282, 285 (1968). The policy should be construed as a whole and one portion thereof should not be construed separately at the expense of disregarding another. Westinghouse, 579 So.2d at 958; Pareti, 536 So.2d at 420; see La.Civ.Code art. 2050. If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of the insured. Interstate, 93-0911, p.6, 630 So.2d at 764; Smith, 611 So.2d at 1379; Pareti, 536 So.2d at 420; see La.Civ.Code art. 2056.

The insured bears the burden of proving the incident falls within the policy coverage.

Doerr v. Mobil Oil Corp., 00-0947 (La. 12/19/00), 774 So.2d 119. “On the other

hand, the insurer bears the burden of proving the applicability of an exclusionary

clause within a policy.” Id. at 124.

EXPRESS OR IMPLIED CONSENT (AUTO POLICY)

Farm Bureau’s policy has a specific section pertaining to “Use of Other

Automobiles” in which it does provide coverage in some circumstances: “If the

named insured is an individual or husband or wife . . . such insurance as is afforded

by this policy . . . applies with respect to the use of any other automobile with

permission of the owner . . .”

Permission can be express or implied. Manzella v. Doe, 94-2854 (La.

12/8/95), 664 So.2d 398. There is no dispute that Brasseaux did not have express

permission to grab the steering wheel. Thus, the question before us is whether there

is a genuine issue of material fact that Brasseaux had implied permission to swerve

the steering wheel. Implied permission arises when the named insured acquiesces in

4 or does not object to the use of the vehicle. Id.

Nero argues that Brasseaux had implied permission to operate the

vehicle at the time of the accident, conceding that she did not have express

permission. Nero argues that the issue of “implied permission” is “heavily debated”

and that a genuine issue of material fact exists in this regard. Nero points to

Brasseaux’s statement to Deputy Sheriff Monceaux that “we were playing a game

when the song came on the radio we pull the steering wheel, I pulled and she pulled

back.” Thus, according to Nero the issue of whether Richard acquiesced in playing

the “game” when the song came on is a genuine issue of fact. Nero argues that

because Brasseaux was allowed to operate the radio and because Richard never told

her not to grab the wheel before Brasseaux did so, consent was implied. We disagree.

Although it is difficult to discern, it appears that the Richards argue that

summary judgment was inappropriate because:

The plaintiff in this case has never agreed to any stipulations regarding facts involving the operation/driving of the vehicle and/or the act of grabbing and jerking the steering wheel, nor any conclusions of these facts as a driver or a passenger. The plaintiff has always asserted that the actions of Candice Brasseaux that day and the outcome which resulted, constitutes negligence on her part and nothing more.

Based solely on this distinction, genuine issues of material fact exists, regarding coverage under the auto policy and therefore the granting of summary judgment in this case was in error.

While the Richards may have never agreed to any stipulations, they also

never put forth any evidence to suggest that they would be able to prove at trial that

Brasseaux had express or implied permission to operate the vehicle or that Brasseaux

was covered under the Farm Bureau automobile policy via some other clause.

The plaintiffs have failed to put forth any evidence that would suggest

that Brasseaux had implied consent to swerve the steering wheel. On the contrary,

5 witness testimony and, more importantly, Brasseaux’s own testimony makes it clear

that she did not have implied consent.

Richard testified that the song “Swerve” began playing from her CD

player and that Brasseaux unexpectedly swerved the steering wheel first to the left.

She stated that there had been no past history between the two regarding the song and

that Brasseaux had never indicated that she would swerve a car steering wheel upon

hearing the song. Richard stated that when Brasseaux pushed the steering wheel to

the left, she, in turn, pushed it to the right to overcome the fact that they were veering

into the oncoming lane of traffic. Richard stated that Brasseaux then grabbed the

wheel again and pulled it to the right despite the fact that she had told Brasseaux,

“No, Candice, stop.” Richard testified that she never indicated to Brasseaux that it

would be appropriate for her to swerve the steering wheel to the left or right when the

song “Swerve” came on. She testified that none of her friends had discussed

swerving a steering wheel upon hearing the song “Swerve.”

Leger, a middle rear-seat passenger, testified that Brasseaux first pulled

the steering wheel to the left, that Richard told her to stop, and that Brasseaux then

pulled it to the right, after which the accident occurred. He also stated he had never

heard anyone discussing swerving a steering wheel in response to this song. He

stated that nothing occurred in the car that would have given Brasseaux the

impression that it would be okay for her to grab the steering wheel and swerve it.

Brasseaux’s testimony elicited the following:

Q. What happened as that song came on?

A. From what I can remember I pulled the wheel to the left and she pulled it back to the right.

Q. Why did you pull the wheel to the left?

6 A. I’m not sure.

Q. Did it have something to do with the song being on?

A. I guess.

Q. What do you remember doing as the song came on?

A. All I remember is that I pulled the wheel to the left and then she corrected it to the right.

...

Q. When you reached over intending to grab the steering wheel and move it to the left did you know that would cause the car to move to the left?

A. Yes, sir.

Q. In the days and weeks and months before this accident had you ever talked with Jenna Richard about this song and about maybe we’ll one day, one of us, grab the wheel and cause the car to swerve left or right when this song comes on?

A. No , sir.

Q. Had you ever heard it talked about amongst your friends that that might be a neat idea to do when this song comes on?

A. No, sir.

Q. So as far as you can remember, although you knew about this song and you knew what the words said, you had never heard anybody talk about let’s do this, let’s make the car move.

Q. And you never discussed it in any way with Jenna Richard?

7 Q. Did she [Jenna Richard] in any way when this song came on, create an impression in your mind that it would be okay for you to reach over and grab the wheel?

A. I don’t remember.

Q. Is it a fair statement to say that she [Jenna Richard] never did anything to make you think it was okay to reach over and grab the steering wheel and jerk it to the left?

Q. Is it a fair statement to say that you intended to grab the wheel and jerk the wheel to the left?

A. Yes.

Q. Is it also fair to say that you knew that as a result of jerking the wheel to the left the car would move left?

Later in her deposition testimony regarding her written statement that

“we were playing a game,” Brasseaux testified:

Q. Would a game be something that one person plays?

A. Maybe.

Q. If this was a game you were the only player, right?

Q. Because nobody else knew about it, that you were going to do any of this, right?

Questioned by a different counsel, she responded:

Q. Ma’am, I want to talk to you about this statement for just a moment. The phrase on this statement that I want to talk to you about is the phrase that says “we were playing a game when a song came on.” Did Jenna Richard ever tell you verbally in the moments before this accident happened

8 and this song came on that she wanted to play a game with you dealing with this Swerve song?

Q. Did she ever do anything to make you believe that she knew you were intending to play a game with the Swerve song as it came on before the accident occurred?

She further stated that they were not playing a game when the song came on and that

she did not know why she said that they were.

Nero testified no one had discussed nor had anyone in the vehicle ever

done anything that would indicate that someone might grab the steering wheel when

the song “Swerve” was playing. She further testified that Richard did not do anything

that would give Brasseaux the impression that it would be okay to grab the steering

wheel.

Marceaux testified that she heard Richard tell Brasseaux to “stop it.”

She further testified that nothing occurred in the car that would have given Brasseaux

the impression that it was okay to swerve the steering wheel.

Although the plaintiffs argue that whether Brasseaux had implied

consent to swerve the steering wheel is a genuine issue of fact, they have failed to put

forth any evidence to suggest that they will be able to meet this burden of proof at

trial. On the contrary, the evidence, particularly Brasseaux’s own testimony,

overwhelmingly shows that she did not have implied consent to jerk the steering

wheel. It is clear that nothing occurred in the vehicle prior to the accident that would

have signaled to Brasseaux that Richard acquiesced in Brasseaux jerking the steering

wheel. Moreover, several testified that once Brasseaux jerked it to the left the first

time, Richard specifically instructed her to stop, yet she continued jerking the steering

9 wheel to the right. Accordingly, this assignment of error is without merit.

INTENTIONAL ACT/OWNERSHIP, MAINTENANCE, USE EXCLUSION

(HOMEOWNER POLICY)

Intentional Act

Farm Bureau maintains that the homeowner policy provides two

exclusions precluding coverage. The first is the intentional act exclusion which states:

1. Coverage E- Personal Liability and Coverage F- Medical Payments to Others do not apply to bodily injury or property damage:

a. resulting from intentional acts or directions by you or any insured. The expected or unexpected results of these acts or directions are not covered.

Nero contends that while Brasseaux intended to grab the steering wheel,

she did not intend to cause a collision or expect that one would occur. The Richards

argue the intentional act exclusion should not apply because Brasseaux only intended

for the car to swerve left and not for the resulting accident to occur.

Again, Brasseaux ’s own testimony is the best evidence that she intended

for the car to move to the left when she jerked the steering wheel. There is no

genuine issue of fact that Brasseaux intentionally jerked the steering wheel to the left

and then to the right. Whether she expected an accident to result is of no moment.

The exclusionary clause omitting the expected or unexpected results of an intentional

act from coverage is a valid exclusion. See Fontenot v. Duplechine, 04-424 (La.App.

3 Cir. 12/8/04), 891 So.2d 41; Perkins v. Shaheen, 03-1254 (La.App. 3 Cir. 3/3/04),

867 So.2d 135; and Canterberry v. Chamblee, 41,940 (La.App. 2 Cir. 2/28/2007), 953

So.2d 900. Nero argues that genuine issues of fact exist as to whether Brasseaux’s

jerking of the steering wheel actually resulted in the accident that followed. Yet,

10 Nero has put forth no evidence to suggest that she will be able to prove this allegation

at trial. Accordingly, there is no genuine issue of material fact and this assignment

of error is without merit.

Ownership, Maintenance, or Use Exclusion of a Motor Vehicle

The second exclusion relied upon by Farm Bureau states:

1. Coverage E- Personal Liability and Coverage F- Medical Payments to Others do not apply to bodily injury or property damage:

e. arising out of:

(1) the ownership, maintenance, use, loading or unloading of motor vehicles or any other motorized land conveyances, including trailers or recreational motor vehicles, owned or operated by or rented or loaned to an insured.

Farm Bureau argues that if the use of the vehicle is an essential element

of the plaintiffs’ recovery, then this exclusion in the homeowners’s policy applies.

This issue is rendered moot by our findings above that the homeowner’s policy

excludes coverage under the intentional act provision.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of

the defendants-appellants, Farm Bureau Casualty Insurance Company and Louisiana

Farm Bureau Mutual Insurance Company, is affirmed. All costs of this appeal are to

be assessed equally among the plaintiffs.