Baker v. Hurst

50 So. 3d 215, 2010 La.App. 4 Cir. 0210, 2010 La. App. LEXIS 1357
CourtLouisiana Court of Appeal
DecidedOctober 6, 2010
DocketNo. 2010-CA-0210
StatusPublished

This text of 50 So. 3d 215 (Baker v. Hurst) 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
Baker v. Hurst, 50 So. 3d 215, 2010 La.App. 4 Cir. 0210, 2010 La. App. LEXIS 1357 (La. Ct. App. 2010).

Opinion

JAMES F. McKAY III, Judge.

| j Liberty Mutual Fire Insurance Company 1 appeals the judgment of the trial court granting Marion Baker’s and Allstate Insurance Company’s motion for summary judgment. The trial court found that the appellant’s homeowners’ policy was applicable as Ms. Baker’s injuries that resulted from an accident that did not arise from Mr. Hurst’s use of his vehicle.2 For the reasons that follow we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On May 17, 2008, Ryan Hurst and Marion Baker were guests at Nancy Isaac-son’s, a mutual friend’s, birthday party at 3504 Napoleon Avenue. Mr. Hurst had parked his Ford F-250 extended cab pickup truck next to the curb and adjacent to a driveway on South Galvez Street. Marion Baker’s Chevrolet van was parked in the driveway. As they were both leaving, Mr. Hurst discovered that he had locked his keys in his pickup truck. He found a piece of metal frame from which he fashioned a metal lock pick and used it to open the truck door. Once the door |2was opened he flung the metal lock pick away. Unbeknownst to Mr. Hurst the metal object ricocheted off of the truck bed into the air, entered Ms. Baker’s open driver side window, which was facing the truck’s cargo bed, and struck Ms. Baker in the eye. This accident caused Ms. Baker to sustain a severe injury to her eye lens which required surgery and resulted in permanent eye disability.

At the time of the accident, Mr. Hurst was living with his parents who had two policies of liability insurance from Liberty Mutual Fire Insurance Company (“Liberty Mutual”), a homeowners’ policy with $300,000.00 liability coverage and an automobile liability policy with $30,000.00 liability coverage.3 Ms. Baker filed suit against Mr. Hurst and Liberty Mutual in its two capacities, Liberty Guard Deluxe Homeowners’ and Liberty Guard Auto, alleging, alternatively, that one or the other policy provided liability coverage to Ryan Hurst, and also against Allstate Insurance Company, her UM policy insurer. Ms. Baker ultimately filed a motion for partial summary judgment against Liberty Mutual asserting that its homeowner’s policy insured Mr. Hurst for his negligent act. In response, Liberty Mutual filed a cross motion for summary judgment, asserting that its homeowners’ policy did not insure Mr. Hurst at the time of the accident because the accident was a result of the use of a vehicle under its automobile liability policy.

The trial court heard both of the motions and granted Ms. Baker’s partial motion for summary judgment and denied Liberty Mutual’s motion for summary judgment.

^ASSIGNMENTS OF ERROR

Liberty Mutual asserts that the trial court erred in finding (a) that the homeowners’ policy provided coverage to Mr. Hurst even though the policy contained a “vehicle use exclusion” clause and (b) that the homeowners’ policy provided coverage for the accident.

[217]*217STANDARD OF REVIEW

Applicable jurisprudence and statutory authority have clearly established that appellate courts review summary judgment de novo.4

DISCUSSION

Liberty Mutual seeks to restrict coverage to the automobile liability policy thus precluding coverage under the homeowners’ policy based on the exclusion clause and asserts that this exclusion clause operates to bar recovery under the homeowners’ policy. The homeowners’ policy specifically excludes coverage for personal liability and medical payments for bodily injury “arising out of the ownership, maintenance, use, loading or unloading of motor vehicles ... owned or |4operated by or rented or loaned to an ‘insured’ “An ‘insured’ means you and residents of your household who are: a. your relatives....”

The crux of the argument and the determinative issue is whether Mr. Hurst’s act of using a wire to gain access to his vehicle and throwing that wire into his truck bed constitutes, as contemplated by the policies, use or loading of the vehicle for the purpose of coverage under the homeowners’ policy or the automobile liability policy.

The trial court determined that Ryan Hurst’s action was negligent in ways separate and apart from the operation of the vehicle. Thus, he had an independent duty to exercise reasonable care in disposing of the metal wire. Therefore, the auto exclusion clause in the homeowners’ policy did not apply.

Ryan Hurst’s negligent act of throwing the metal object onto a hard surface, the truck bed, had no connection with the use of his truck and is not to be construed as a use of his vehicle. The Liberty Mutual automobile policy clearly established that there is coverage for negligent acts of it insured while in the “use” of his vehicle. The homeowners’ policy provides coverage because the injury did not involve “use” of the vehicle. Mr. Hurst’s may have been negligent in tossing the metal object but he was not negligent in operating or using his vehicle. The fact that the metal ricocheted off the truck bed after being thrown and before causing injury is merely incidental.

In the case of Terminix Services, Inc. v. State Farm Mut. Auto. Ins. Co., 01-720 (La.App. 5 Cir. 11/27/01), 803 So.2d 198, the court recounted in detail the | ^considerations to be made when making a determination of what “use” of a vehicle [218]*218means. The meaning of the term “use” in vehicle liability insurance policies has been the subject of much litigation. It is well established that one need not be actually operating or driving a vehicle in order to be using it. Baudin v. Traders and General Insurance Company, 201 So.2d 379, 381 (La.App. 3rd Cir.1967), Tolleson v. State Farm Fire and Cas. Co., 449 So.2d 105, 108 (La.App. 1st Cir.1984).

Further, the jurisprudence of Louisiana has given a broad interpretation to the words “arising out of the ... use of the automobile.” The totality of the circumstances surrounding or leading up to an accident should be examined in determining if accident arose out of the “use” of the automobile or truck. By looking to what part the automobile played in the entire scheme the courts can determine if there is coverage, and if so, how far it will be extended. Each case must depend on its facts according to the part the automobile played in the scheme. U.S. Fidelity & Guar. Co. v. Burris, 240 So.2d 408, 409 (La.App. 2 Cir.1970).

In Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1982), the Supreme Court established the analysis to be used in determining whether an accident arose out of the “use” of an automobile. The Court noted that the “use” provision is designed to limit coverage to liability resulting from conduct of the insured which constitutes both a use of the vehicle and a legal cause of the injury. Thus, the courts are required to answer two separate questions:

|fi(l) Was the conduct of the insured of which the plaintiff complains a legal cause of the injury?

(2) Was it a use of the automobile?

In deciding the first of the two issues listed above — that is, whether the policy holder’s actions were a legal cause of the plaintiffs damages, the Court in Carter considered whether the insured person breached a legal duty imposed to protect against the particular risk involved. Id. at 1084. In so doing, the Court applied a lengthy and comprehensive duty/risk analysis.

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Related

Casso v. United Cabs, Inc.
688 So. 2d 180 (Louisiana Court of Appeal, 1997)
United States Fidelity & Guaranty Company v. Burris
240 So. 2d 408 (Louisiana Court of Appeal, 1970)
Kessler v. Amica Mut. Ins. Co.
573 So. 2d 476 (Supreme Court of Louisiana, 1991)
Carter v. CITY PARISH GOVERNMENT, ETC.
423 So. 2d 1080 (Supreme Court of Louisiana, 1982)
Baudin v. Traders & General Insurance Company
201 So. 2d 379 (Louisiana Court of Appeal, 1967)
King v. Parish National Bank
885 So. 2d 540 (Supreme Court of Louisiana, 2004)
Tolleson v. State Farm Fire and Cas. Co.
449 So. 2d 105 (Louisiana Court of Appeal, 1984)
Alexis v. Southwood Ltd. Partnership
792 So. 2d 100 (Louisiana Court of Appeal, 2001)
Reynolds v. Select Properties, Ltd.
634 So. 2d 1180 (Supreme Court of Louisiana, 1994)
Fertitta v. Palmer
211 So. 2d 282 (Supreme Court of Louisiana, 1968)
Semel v. Green
211 So. 2d 300 (Supreme Court of Louisiana, 1968)
Terminix Services v. State Farm Mut. Auto
803 So. 2d 198 (Louisiana Court of Appeal, 2001)

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Bluebook (online)
50 So. 3d 215, 2010 La.App. 4 Cir. 0210, 2010 La. App. LEXIS 1357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-hurst-lactapp-2010.