Arceneaux v. Norman

931 So. 2d 484, 2006 WL 1409866
CourtLouisiana Court of Appeal
DecidedMay 24, 2006
Docket05-1536, 05-1537
StatusPublished
Cited by5 cases

This text of 931 So. 2d 484 (Arceneaux v. Norman) 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
Arceneaux v. Norman, 931 So. 2d 484, 2006 WL 1409866 (La. Ct. App. 2006).

Opinion

931 So.2d 484 (2006)

Henry ARCENEAUX
v.
Pamela NORMAN, et al.
Elby Johnson, Jr., et al.
v.
Swift Transportation Co., Inc.

Nos. 05-1536, 05-1537.

Court of Appeal of Louisiana, Third Circuit.

May 24, 2006.

*485 Michael J. Remondet, Jr., Donovan J. O'Pry, II, Lafayette, Louisiana, for Appellant, Swift Transportation Co., Inc.

Bob Broussard, D. Patrick Daniel, Jr., Lafayette, Louisiana, for Appellees, Elby Johnson, Jr. and Denise Judice Johnson.

James D. Hollier, Brandon W. Letulier, Lafayette, Louisiana, for Appellee, Pamela Norman.

Scott Dartez, Perrin, Landry, deLaunay, Dartez and Ouellet, Lafayette, Louisiana, for Appellee, Henry Arceneaux.

Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.

COOKS, Judge.

STATEMENT OF THE CASE

The trial court granted Pamela Norman's cross motion for summary judgment finding Ms. Norman, as an employee of Swift Transportation Company, Inc. had "initial permission" to operate its 18-wheeler truck and, therefore, was covered as an insured under its policy. The trial court denied Swift Transportation's motion for summary judgment relating to the same issue. Generally, the denial of a motion for summary judgment is a non-appealable interlocutory ruling. La.Code Civ.P. art. 966. However, in the interest of judicial economy, the denial of a motion for summary judgment may be reviewed in conjunction with other appealable issues. Industrial Indem. Co. of Northwest v. Central Nat. Ins. Co. of Omaha, 99-2535 (La.App. 1 Cir. 12/22/00), 775 So.2d 1246, *486 writ denied, 01-225 (La.4/12/01), 790 So.2d 1. Accordingly, we will review both the denial of Swift Transportation's motion for summary judgment and the granting of Ms. Norman's motion for summary judgment.

STATEMENT OF THE FACTS

On August 26, 2002, Henry Arceneaux and Elby Johnson, Jr. were allegedly injured while riding as passengers in an 18-wheeler truck driven by Pamela Norman and owned by her employer, Swift Transportation Company, Inc. (Swift). Ms. Norman had been hired as a truck driver by Swift the day before the accident. On the day of the accident, Ms. Norman testified she picked up Elby Johnson and Henry Arceneaux and the three drove to Golden Palace convenience store to buy alcoholic beverages. All three opened their containers of alcohol and began drinking and driving around in the Swift vehicle. Ms. Norman testified she was aware of Swift's policy prohibiting the transporting of people in the truck and the consuming of alcohol while driving. Ms. Norman testified Mr. Johnson suggested how they could make money if they staged an accident in the Swift truck. Ms. Norman testified extensively about Mr. Johnson's idea about staging an accident, how much money they could get and how they could each use the money. She testified Mr. Johnson attempted to talk her into putting the truck into drive and letting it hit a telephone pole near the convenience store. She also testified Mr. Arceneaux stated they should hit a low brick wall instead of a telephone pole. According to Ms. Norman, Mr. Johnson was smoking marijuana in the truck. Ms. Norman admitted to drinking alcohol, but denied smoking marijuana because of the company's drug testing policy.

After a couple of hours, the group ran out of alcohol and they drove back to the convenience store to purchase more. Ms. Norman testified, as they rode past a street corner where individuals were selling drugs, Mr. Johnson asked to be dropped off because one of the individuals owed him money. When she refused to stop the truck, Mr. Johnson opened the door and jumped out. She stopped the truck and went around to assist him. She testified he appeared to be uninjured but refused to get back in the truck. She left Mr. Johnson and Mr. Arceneaux on the side of the road, drove to Mr. Johnson's house and told his wife, Denise, to pick them up.

Mr. Johnson and Mr. Arceneaux tell a different story. They claim the only one drinking on the day of the accident was Ms. Norman. Mr. Johnson stated when he saw Ms. Norman with a can of beer he "freaked out" and demanded to be let out of the vehicle. As Mr. Johnson was attempting to exit the vehicle, Ms. Norman accelerated causing him to fall to the ground where he sustained injuries. Mr. Arceneaux alleges he was looking back at Mr. Johnson when Ms. Norman applied the brakes causing him to fall forward hitting the dashboard. Mr. Johnson and Mr. Arceneaux sued Pamela Norman and Swift Transportation Company, Inc. for injuries sustained in the accident.

Swift filed a Motion for Summary Judgment alleging: (1) Pamela Norman was not in the course and scope of her employment at the time of the accident; (2) Swift did not negligently entrust the vehicle to Ms. Norman; and (3) Ms. Norman was not a "permissive user" of the Swift vehicle. The trial court granted Swift's motion on the first two issues finding Ms. Norman was not in the course and scope of her employment with Swift at the time of the accident and Swift had not negligently entrusted its vehicle to Ms. *487 Norman. However, the trial court found Ms. Norman was a permissive user of the Swift vehicle and was covered as an insured under the Swift policy. Swift appeals on the issue of coverage for Ms. Norman. We note the ultimate liability of Swift for the injuries allegedly sustained by Mr. Johnson and Mr. Arceneaux is not at issue in this appeal. This appeal is limited to the issue of coverage. Based on our review of La.R.S. 32:900(B)(2), and related jurisprudence, we conclude, Ms. Norman was given initial permission to drive the Swift vehicle and is covered as an insured under the Swift policy. Therefore, we affirm the decision of the trial court.

LAW AND DISCUSSION

Swift contends the terms of the Swift policy excludes Ms. Norman from coverage. Specifically, Swift argues the language in the policy requires that liability arise out of "operations performed" for the named insured. The Swift policy states:

ADDITIONAL INSURED ENDORSEMENT
IT IS AGREED:
(1) The "Persons Insured" provision is amended to include as an insured any person, organization or entity to whom the named insured is contractually obligated to provide such coverage, but only with the respect to liability arising out of operations performed for such insured by or on behalf of the named insured.

Additionally, Swift contends that the operator of the vehicle must use the vehicle with the permission of the named insured and the operation or use of the vehicle must be within the scope of that permission. The Swift policy provides:

III. PERSONS OR ENTITIES INSURED
B. Each of the Following is an Insured Under This Policy to the Extent Set forth Below:
(1) any person while using, with the permission of the Named Insured, any automobile owned by, loaned to or hired for use by or on behalf of the Names insured and any person or organization legally responsible for the use thereof, provided actual operation or other actual use is within the scope of such permission.

Swift contends Ms. Norman's conduct and the alleged accident did not arise out of "operations performed" for her employer and the vehicle was being used outside the scope of permission granted by Swift. Specifically, Swift contends: (1) Ms. Norman was prohibited from allowing guest passengers in the truck without prior written approval and consent of Swift; (2) she was consuming alcohol while driving the truck; and, (3) she was using the truck for personal use.

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Cite This Page — Counsel Stack

Bluebook (online)
931 So. 2d 484, 2006 WL 1409866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arceneaux-v-norman-lactapp-2006.