Bernard v. Ellis

111 So. 3d 995, 2012 La. LEXIS 1956, 2012 WL 2512772
Supreme Court of Louisiana·Decided July 2, 2012·No. No. 2011-CC-2377·Published·Cited by 76 cases

Opinions

JOHNSON, Justice.

hln this writ application, we are asked to determine whether Norell and Andrea Bernard (“Plaintiffs”), who were guest passengers in a vehicle owned and operated by Ann Bernard and insured by Imperial Fire & Casualty Insurance Company (“Imperial”), are entitled to uninsured/un-derinsured motorist (“UM”) coverage under the Imperial policy. For the reasons that follow, we hold that the Plaintiffs are liability insureds under the Imperial policy and therefore entitled to UM coverage. Thus, we affirm the rulings of the lower courts, denying Imperial’s motion for partial summary judgment.

FACTS AND PROCEDURAL HISTORY

In February of 2009, a vehicle driven by Antoine Ellis disregarded a stop sign and struck a vehicle owned and operated by Ann Bernard. Norell Bernard and Andrea Bernard were guest passengers in Ann Bernard’s vehicle at the time of the accident. Mr. Ellis was uninsured, and Ann, Norell and Andrea Bernard all filed suit against Imperial for UM coverage. While Imperial did not dispute its named insured, Ann Bernard, was entitled to UM coverage, it filed a Motion for Partial Summary Judgment as to Norell and Andrea Bernard’s claims on the basis that the guest ^passengers were not residents of Ann Bernard’s household, and therefore did not meet the definition of “insured person” under the terms of the insurance policy for UM coverage.1 In opposition, Plaintiffs argued that as permissive guest passengers, they were “using” the vehicle and therefore “insureds” under the terms [998] of the liability section of the Imperial policy,2 and thus statutorily entitled to UM coverage pursuant |3to La. R.S. 22:1295.3

After a hearing, the city court denied Imperial’s motion for summary judgment.4 Imperial applied for supervisory writs from this ruling, but the court of appeal denied the writ, finding Plaintiffs were insureds under the liability section of the policy. The court observed that although the Imperial policy did not define the term “use,” the jurisprudence routinely found that a passenger can be “using” the vehicle. The court concluded: “Liberally construing the policy, we find it provides coverage to the guest passengers who were occupying the insured vehicle with the driver’s consent.”5 Imperial subsequently filed a writ application in this Court. We granted the writ and remanded the case to the court of appeal for en banc consideration, instructing the court to reconcile its holding with its previous ruling in Knight v. Imperial Fire & Casualty.6

In Knight, guest passengers filed suit against Imperial seeking recovery of UM damages. Imperial moved for summary judgment, arguing guest passengers not residing in the driver’s household were not liability insureds, and therefore not 14covered under the UM provision. The city court denied Imperial’s motion. The Fourth Circuit granted Imperial’s writ, and granted Imperial’s motion for summary judgment, stating:

Both the liability portion and the uninsured motorist portion of the Imperial Policy present two distinct definitions of [999] “insured persons.” In this case, plaintiffs’ attempt to use the definition of “insured person” found in the liability portion of the policy is in error. Further, Imperial’s provision limiting coverage to “insured persons” under the uninsured motorist section of its policy is only extended to those who reside in the same household and are blood related; the plaintiffs do not meet this criteria. The district court erred in failing to grant Imperial’s partial summary judgment. A clear reading of the policy in conjunction with the law reveals that no genuine issues of material fact remain.

Knight v. Imperial Fire & Casualty, 10-1474 (La.App. 4 Cir. 1/7/11) (unpub.).

On remand of this case, the Fourth Circuit, en banc, denied Imperial’s writ in a split decision.7 The majority opinion provided, in pertinent part:

Imperial contends that even assuming the guest passengers were using the vehicle, as this court found in the Bernard case, the definition of an “insured person” at issue contains an additional requirement that the “accident arise out of that person’s use.” Imperial contends that it cannot be concluded that the accident arose out of the guest passengers’ mere riding in the vehicle. In support of its position, Imperial cites the First Circuit’s recent decision in Batiste.[8]
The Batiste case involved the same factual scenario and policy provisions at issue in the Bernard and Knight cases. In the Batiste case, the First Circuit, with one judge dissenting, affirmed a judgment granting Imperial’s motion for summary judgment on the same coverage issue. The First Circuit reasoned that “[t]o find that plaintiffs were ‘using’ the vehicle simply because they were riding as guest passengers would require a strained interpretation inconsistent with the meaning of the word and beyond what could have been contemplated by the parties.” The court further reasoned that even assuming the passengers were using the vehicle, the accident did not arise out of their use. The court still further reasoned that the “use” provision is “designed to limit coverage to liability resulting from conduct of the insured which constitutes both | 5a use of the vehicle and a legal cause of the injury.” Based on this reason, the court held that the guest passengers who were riding in the insured vehicle did not legally cause or contribute to the accident, did not fall within the definition of “insured persons” for purposes of liability coverage, and thus are not entitled to UM/UIM coverage.
We are not bound by and decline to follow the Batiste case. The omnibus provisions in the liability portion of Imperial’s policy define an insured as “any person with respect to an accident arising out of that person’s [permissive] use of a covered vehicle.” As we stated in our prior writ disposition in the Bernard case, use includes riding as a passenger. But for the guest passengers’ permissive use of the covered vehicle — riding in the insured’s vehicle when the accident occurred — they would not have been injured. Liberally construing the policy language, we hold that the guest passengers fall within the definition of “insured persons” for purpose of liability coverage, and thus are entitled to UM/UIM coverage.

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Bernard v. Ellis, 111 So. 3d 995, 2012 La. LEXIS 1956, 2012 WL 2512772 (La. 2012).

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